The Intellectual property regime in India provides for protection under the Design Act 2000, the Copyright Act, 1957, and the Geographical Indications of Goods ( Registration & prohibition) Act, 1999. Although there seems to be three distinct legislation, that protects three distinct characteristics in the process & lifetime of the fashion (fashion industry) apparel or the accessory.
The artistic work in the sketches of the designs ( as soon as they are reduced to a material tangible medium ) is protected under the Copyright Act 1957. The Designs Act 2000 is so drafted to permit the protection of nonfunctional aspects of an object, having visual appeal, such that design that includes the features of shape configuration, pattern, ornament, or composition of lines or colors applied to any two dimensional or three dimensional or on both forms. The third schedule to the Design Rules 2001 provides an exhaustive list of products & articles in respect of which an application may be made to the controller. Such a design right remains in force for a period of ten years, extendable subject to conditions for a total period of 15 years.
In addition to the law of designs. It is also pertinent to note that the Kasuti Embroidery from Karnatka, Kutch Embroidery from Gujarat & Sujini embroidery work from Bihar have all been granted GIs.
Trademarks help to maintain a prestige premium for particular brands and can be quite valuable. Big fashion houses value their brand equity. Most develop a bond with their customers through their brand names and fiercely protect these through registration of trademarks and protection of associated artwork by copyright law. Trademarks are just as important for a small or startup company in the fashion industry.
Many fashion goods sold by street vendors are counterfeits that plainly infringe trademarks. Occasionally a fashion design will visibly integrate a trademark to an extent that the mark becomes an element of the design. Burberry’s distinctive plaid is trademarked, for example, and many Burberry’s garments and accessories incorporate this plaid into the design. Occasionally—and some would argue increasingly—clothing and accessory designs prominently incorporate a trademarked logo on the outside of the garment; think, for example, of a Louis Vuitton handbag covered with a repeating pattern of the brand’s well-known “LV” mark. For these goods, the logo is part of the design, and thus trademark provides significant protection against design copying.
But for the vast majority of apparel goods, the trademarks are either inside the garment or subtly displayed on small portions such as buttons. Thus for most garments, trademarks do not block design copying.
In addition to protection of source-defining marks, trademark law also protects “trade dress,” a concept originally limited to a product’s packaging, but which, as the Supreme Court has noted, “has been expanded by many courts of appeals to encompass the design of a product.” Some courts have gone so far as to hold that trade dress involves the total image of a product …such as size, shape, color or color combinations, texture, graphics or even particular sales techniques.” Many of the attributes constitutive of trade dress are, of course, key to the appeal of clothing designs, and trade dress might therefore play an increasingly significant role in the identification of distinctive designs.
Trade Marks Designers can use trademark law to protect not only logos and brand names but also other distinct features of a product. For example, Bettina Liano has registered the distinctive pocket stitching on her garments as a trademark, while British fashion house Burberry holds trademark rights in both the trademark “Burberry” and the Burberry check pattern. Burberry has enforced its trademarks in many jurisdictions against counterfeits including a recent action in the US District Court.
The Italian clothes company, Pickwick, offers an interesting example of the strategic use of a trademark to build a successful business in the fashion industry. Pickwick now sells a range of casual fashion wear to adolescents across Europe. But not so long ago, all that the company had was the trademark itself, which depicted a young, faceless boy with a spiky hairstyle. The trademark owner started his business by selecting items he judged would have particular style appeal to teenagers, adding his distinctive trademark and distributing them through the local shops in Rome. Initially, the business costs were kept low by operating from a garage.
Teenagers perceive the Pickwick logo as trendy and are willing to pay extra for clothes bearing its trademark. Today, the company subcontracts the manufacturing and focuses on marketing, distribution, and monitoring, and controlling the use of the trademark.
COPYRIGHT PROTECTION :
An artist is entitled to protect artistic work under copyright law. Copyright protection is granted to an artistic work even if the work is already published and has been already in use. The protection under copyright is only limited to the drawing and any such representation on the paper. There is no engineering work attached to it. When it comes to protecting a work or design for the textile industry one can seek copyright protection under the Copyright Act, 1957 in India for a period of the lifetime of the artist and an additional 60 years after he passes away. Copyright subsists inherently to the work of an artist for its creation. It plays a major role in motivating a creator and thereby ensuring that the illegal use of his creativity or skill is not obtained.
TRADE SECRETS :
Trade secrets may range from a list of key suppliers and/or buyers, to the use of software tools for fashion design, to logistics management of the entire value chain. In some fashion businesses, core trade secrets serve to protect the computer-implemented, software-based business models, which underpin an entire business strategy, based on stealth and speed, to supply a limited quantity of fashion products.
For example, the Spanish retail fashion chain, ZARA, uses a proprietary information technology (IT) system to shorten their production cycle – i.e. the time from identifying a new trend to delivering the finished product – to a mere 30 days. Most of their competitors take from 4 to 12 months. The company receives daily streams of e-mail from store managers signaling new trends, fabrics, and cuts, from which its designers quickly prepare new styles. The fabric selected is immediately cut in an automated facility and sent to workshops. A high-tech distribution system, with some 200 kilometers of underground traces and over 400 chutes, ensures that the finished items are shipped and arrive in stores within 48 hours.
Other fashion houses use IT to make customized products in response to an individual customer’s request. For example, Shirtsdotnet (www.shirtsdotnet.com) aims to reshape the traditional clothing industry by reversing the process of decision-making and following the made-to-order business model. Shirtsdotnet is a Business to Business clothing software platform provider, offering made-to-measure, mass customization clothing solutions for mail order companies. Customers can design and order apparel directly from the virtual shop. The business relies on proprietary software, which is protected as a trade secret and by copyright law.
The above examples show that the strategic use of new information technology, protected by the tools of the IP system, can play a critical role in establishing and consolidating a market position.
This is especially true in an industry such as fashion, which is driven by creativity and by the intellectual capital invested in it. Protecting that intellectual capital in the form of IP assets serves to boost income through sale, licensing, and commercialization of differentiated new products, improve market share, raise profit margins, and reduce the risk of trampling over the IP rights of others. Good management of IP assets in a business or marketing plan helps to enhance the value of an enterprise in the eyes of investors and financing institutions
Patents may not immediately spring to mind when considering the fashion industry. Artistic creations cannot be patented and therefore patents are not widely adopted by designers.
A Design cannot be patented for the below reasons :
There are requirements for securing a patent in any jurisdiction is :
(1) The invention must be novel
(2) The invention must be non-obvious
(3) The invention must have industrial application
To be novel, an invention cannot be known or used by others anywhere in the world, or patented in another country, prior to filing for patent protection. The standard for determining non-obviousness is whether the invention would “have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.” Because so many apparel designs are reworking and are not ‘new’ in the sense that the patent law requires,” it is unlikely that new fashion designs will be novel or non-obvious enough to meet the statutory qualifications for patent protection.
PROTECTION UNDER INDUSTRIAL DESIGN ACT
When an artisan seeks exclusive protection for his work then he should register it under the Design Act, 2000. But the criteria to register a work under the Design Act, 2000 is that the work must be new without any prior publication and the novelty of the artist must be reflected from the design to get its registration.
In case an employee is attached to the creation of a design during his course of employment, the employer can only apply for the registration of such design. When the reproduction of original artwork is conducted by employing an industrial process, which resulted in a finished article and possessed appeal to the eye then the industrial process constitutes a “design”, within the purview of the Designs Act. The Design Act, 2000 gives a monopoly right to the owner of the artistic work for a period of 10 years and he can further extend it for a period of 5 years. Hence, the Industrial Design Act and Copyright Act provide an umbrella for protection for all artistic conceptions.
Piracy / Infringement of Registered Design :
Infringement under the Act means:
a) To publish or to have it published or expose for sale of any article of the class in question on which either the design or any fraudulent or imitation has been applied.
b )To either apply or cause to apply the design that is registered for any class of goods covered by the registration.
c)To import for the purpose of sale any article belonging to the class in which the design has been registered.
So an infringement can be established by showing the following facts:
i) Existence of copyright in the design.
ii)Fraudulent imitation applied by somebody.
iii)The fraudulent imitation applied without the license or written consent of the registered proprietor.
iv)Application of design has been made for the purpose of sale of the article.
The following persons could be infringers of a copyright in a design :
a) A person who applied the fraudulent imitation of design without the consent or license of the proprietor.
b) Importer of the design.
c)Publisher of the design.
Remedies in case of Registered Design :
The judicial remedy for infringement :
Civil remedies are :
a) an injunction
b) damages or compensation.
There is no provision for criminal proceedings against piracy of the design.
A sum of not exceeding twenty-five thousand rupees is recoverable as a contract debt & the total sum recoverable in respect of any one design will not exceed fifty thousand rupees. A suit is to be instituted in a District Court or a High Court depending on the quantum of damages claimed.
HOW PROTECTION FOR A FASHION DESIGN CAN BE IMPROVED
Fashion design protection is not intended to protect trends, but to protect the appearance of an article of apparel. Particularly problematic is that every design traces back to a pre-existing design or trend. Fashion is a visual medium like sculpture or painting. And it has its own system of recordation of elements. Words are used to describe labels. A color system to describe shades of colors.
One important difference between copyright/copyright lawyers protection and fashion design protection is the length of protection and the life of the creation. If a designer brings an action for infringement of a registered design, it may take several months to pull together a court and jury to decide whether something is actually an infringement. By the time a court reaches a final infringement decision, the design may be obsolete and any preliminary injunction or intermediate action taken by the court may have hurt the party who was lawfully entitled to use and license the registered design.
Instead, if a panel of fashion experts was assembled to make decisions, not only would the decisions be made faster, but the panel would be better trained in fashion designs and, therefore, better able to identify infringements This would create greater consistency and may discourage frivolous infringement suits
Registration enables the inventors of fashion to prevent the misuse or exploitation of the original ideas or aspects or any articles. A vast amount of investment is made in designs and trends which is then shared into the public domain to increase its popularity and expand business operations. Countries such as the UK and European Union account for a Design Act for ensuring protection for unregistered designs. India offers mandatory protection under Design Act.
Although the process of registration is expensive and weighty, the practice of registration needs to be adopted so as to restrain unscrupulous competitors from copying some of the most innovative creations and ensure guarantee in the futuristic aspect. Therefore, the generation of an idea marks the advent of a unique feature but that needs to be protected by IP to prevent its plagiarism.