Abstract
The fashion industry holds a prominent position in today’s world. The relation between human lifestyle and fashion is almost inseparable and so, the relation between fashion and IPR. The very birth of fashion is due to creativity. But with the growing technology and advancement, there are instances of easy copying and piracy due to which the original creator suffers a great deal of loss not only with respect to his investment but also with respect to his labor and time which he expended on that particular creation. Therefore, the protection of creativity in the fashion industry becomes important. And there comes the role of IPR which ensures protection to design under its various branches. The paper intends to encapsulate the concept of designs protection by dividing its content into four parts. The first part deals with the theories related to concept of designs in the fashion industry, the second part deals with the issues revolving around the piracy of design, third part deals with the measures adopted by the different countries to safeguard designs within their territory, fourthly the paper discusses landmark case laws in relation to designs protection.
Introduction
Fashion has become an inevitable part of our lifestyle. Fashion adds essence to one’s personality so one cannot deny the relevance of fashion in today’s world. But what makes fashion to be a statement to stand out of the crowd is its creativity. Both the fashion and creativity has a symbiotic relationship between each other. Without creativity fashion is dead, therefore it becomes very essential to protect the designs created by the designers in the fashion industry. In this context, IPR regime comes to the rescue of those designers whose designs are now and then being infringed by the third party. Intellectual Property Rights is the key regime where all the creativity aspect is being protected by its various branches such as copyright, trademark, geographical indication, patents etc. The IPR regime is specifically developed in the areas of creativity to protect the due credit of the original creators and to serve the society at the same time. Therefore, the significance of Intellectual Property Rights is tremendous in the field of creativity and innovation.
The Theory of Piracy Paradox
Kal Raustiala and Christopher Jon Sprigman , in their pioneer work has propounded the theory of Piracy Paradox wherein, they said that it is important to have piracy in the industry like fashion industry to that the growth of the fashion creativity continues to happen. They emphasized that it is very crucial to have piracy be done so that it will encourage more and more creativity aspect to be built. This theory supports the concept of piracy in the realm of fashion industry as with this practice of piracy in the market, the original creators would work more hard to come up with the new designs and hence, in this way the ecosystem of fashion industry will be maintained. This theory is based on the concept of low IP equilibrium which says that fashion industry grows in a low level of IP protection, the lesser is the IP protection, the more encouragement is there among the designers to create more innovative work. But this theory is highly criticized on the point that there are many small designer who might be demotivated because of the issue of piracy. As piracy takes with them the due credit from the original small creators who are eager to do hard work in order to innovate but because of piracy practices they indeed suffer the loss of investment as well as their efforts. In this way, this theory proves to be a drawback for these small designers who have no economic back as such .
Concerns over copying and piracy of designs
With the growing popularity of a particular design in the fashion industry, there are huge concerns over it being used by unauthorized person without giving due credit to the original creator of the design. Therefore, it becomes very important to keep one’s design protected. There are various ways through which one pirates the designs of the popular designers. One such is by Knockoff and other by Counterfeit.
KNOCKOFFS: Knockoff is the practice of imitating the design of the original creator in a close proximity with the original design. But the design created following this method is not the production of identical design but it is merely the imitation of the original design. And all the designs which are made using this method of knockoffs are not sold under the same label or trademark as that of the original designer therefore, this practice of imitating in close proximity with the original design does not amounts to passing off. And if any wish to oppose this practice of knockoff, one has to show that there lies an intention to deceive the public at large.
COUNTERFEIT: Counterfeit refers to the situation where there is total identical copy of the original design is made by an unauthorized person and are also sold under the label and trademark of the original designer with an intention to passing off the goodwill and reputation of the original creator of the design. The unauthorized person by counterfeiting the designs of the original creator overrides the reputation and goodwill of the original creator by manufacturing the exact copy of the design of the original creator of the design and by selling it under the same trademark as that of the original creator hence, passing off the goods of the original creator.
Cross-border protection of fashion designs
Europe Union: Directive 98/71/ec of the European Parliament and of the Council of 13th October 1998 is in place to ensure the protection of designs across the European Union. The issue with respect to the European directive is that in order to get protection under this directive, one needs to file for national application for which the member countries has to bear cost. So, instead of going for filing for national application, the member states find’s it more convenient to get protection under the Community Design system which came as result of Council Regulation No. 6/2002 of December 12,2001. The Community Design System ensures a uniform protection of industrial design across the European Union.
France: France is known for its fashion industry specially Paris which stands at the center when it comes to world’s fashion . Designs under the French jurisdiction is protected under their Copyright Act of 1793 . The French designs are the mixture of both aesthetic as well as utilitarian forms, due to this difference in the fashion character, the protection are either given under industrial designs law or under literary or artistic property along with the French Copyright which is subject to the originality as a determining factor.
United Kingdom: A varied range of protection to designs are given under the U.K regime. Since, designs under the U.K regime can be registered or can even exist without registration. Therefore, protection is available under The Community Registered Designs, Community Unregistered Designs, UK Registered Designs, UK Unregistered Design which is together referred as Harmonised Designs . In United Kingdom, the Registered Design and Design Right, Trademark and Copyright law is relied upon by the businessman in UK to protect their brand and design. The original works of the artistic craftsmanship such as sketches of the clothing etc under Copyright, Designs and Patents Act (CDPA) of 1988 .
Italy: In the light of the rising incidents of selling of counterfeit goods under the tag “Made in Italy” Italy came up with the decision to protect its designs under its Copyright and Design Right. In addition to this, there is an establishment of “Jury of Design” which was established as a result of agreement which was entered into by The central business association of Italian employers (founded in 1910) and Italian Designer’s Association (ADI). The Jury of Design consists of expert members, designers, entrepreneur etc. The decision given by the Jury of Design is enforced by the party even if there is no compulsion as such .
INDIA: Designs protection in India is provided under various brances of the IP regime such as :
Protection under the Copyrights Act, 1957
The Copyright Act of 1957 specifically provides protection to the original works created by the creators. The protection provided under Copyrights Act, 1957 is with respect to original literary works, artistic work, musical or dramatic work . The design are protected under the category of ‘artistic work’. Artistic works means a drawing, painting, sculptures including diagram, plan, charts, maps, an engraving or a photograph, whether or not any such work possesses artistic quality, a work of architecture and any other work of artistic craftsmanship . Artistic work also includes the drawing of the fashion apparels .
Protection under Designs Act, 2000
The Designs Act of 2000 deals with the overall appearance of an article. It ensures protection to those articles which gives an aesthetic appeal to the viewer’s eyes. Section 2 (d) defines the design. Unlike copyright, designs needs to be registered under the Controller General in order to get registration. Any design already registered under The Designs Act, 2000 will nor accorded with any protection under The Copyright Act of 1957 but in case a particular design is not registered under The Designs Act, 2000 then the protection can be sought under the Copyright Act of 1957. This protection will cease to exist when the said article is produced for more than 50 times .
Protection under Trademark Act, 1999
Trademark protection in the fashion industry ensures the protection of logos, brand name, image, design and all that feature of a fashion attire which makes it unique from the rest of the attires or dresses. One can use the registered design as a trademark also, the reason being that the Designs act, 2000 does not provide for the usage of registered design as a trademark to be a ground for cancellation of Design’s registration . Therefore, post registration design can very well be used as a trademark.
Protection under Patents Act, 1970
Though the thought of getting a patents protection a design created in the fashion industry seems to be vague and not possible. But there are various instances where the protection to the design has already been under Patents. One of the Danish Biotech company named Novozymes, which developed an enzyme and microorganism specifically for the purpose of protecting fabrics. This enzymes particularly, removes the indigo dye from the denim hence giving them a worn look. The fabric finishing technology such as this has been licensed throughout the world. Similarly, an Italian company named Grindi Srl. invented Suberis, a fabric created with the help of cork. This fabric was smooth, lighter than silk, scratch less, waterproof, fireproof, stain-resistant etc. This company patented its unique product by filing PCT application across various countries .
Landmark cases:
Ritika Private Limited v. BIBA Apparels Private limited
In this case, plaintiff was a famous designer who sell her products under the trade name RITU KUMAR. The plaintiff filed a suit against the defendant claiming copyright protection for the drawings, sketches and designs which the plaintiff has printed on her garments and dresses. In this case, plaintiff had registered only for copyright protection for her designs in the hope of getting longer duration of protection i.e of 60 years and has intentionally not registered under the Design Act, 2000 which only provides for 10 years plus 5 years subject to renewal. The defendants took recourse to the loophole provided under section 15 (2) of the Copyright Act, 1957 which states that a copyright protection over the design if the design is not registered under The Design Act, 2000 will subsist only when the article is not produced for more than 50 times. Since, in the present case, the article was produced more than 50 times. The court held that no copyright protection subsist in there also the fact that the plaintiff has not registered its design under The Designs Act of 2000. Therefore, the plaintiff was not entitled for protection under either of the two. Hence, the plaintiff’s suit was dismissed in the present matter.
Christian Louboutin SAS v. Mr. Pawan Kumar & Ors.
In this case, the famous red sole shoes originally designed by Christian Louboutin who also holds a trademark with respect to the same brought a suit against the defendants for counterfeiting the red sole shoes with minor changes such as the colour scheme for the sole of the shoes remained red in colour but the other parts of the shoes was made with different colour schemes. The plaintiff’s company being the popular brand across the globe had only two shops in India where its original products were available one was in Mumbai and other was in Delhi. On getting informed about the same, the plaintiff filed a suit against the defendant for selling the counterfeit goods under the plaintiff’s trademark. The court decided in favor of the plaintiff.
People Tree v. Dior
In this case, the design in question was the block prints which was designed by the People Tree with the help of the artisans of the Rajasthan. In this particular case, these block prints were taken up by the yet popular brand Dior. The issue raised in this case was that whether the protection to the block print is to be given under the Designs law, or under copyright law, Geographical Indication (hereinafter referred as GI) or trademark. The issues in this case was bifurcated, first on the protection to be given under Copyright Act, 1957 it was argued that since a group of artisan is involved in the making the block prints therefore, the problem to determine ownership comes into picture. However, if there have been contract between the artisans of Rajasthan and People Tree to develop block prints then, People Tree can very well take the ownership of the same. Secondly, on the matter of giving GI protection, it was argued that since the ‘dabu technique’ which was used in making the block prints by the artisans had no GI protection. But the block prints had already received GI by the Government of India. Also, no trademark protection is possible as present matter is not concerned with the trademark. In all these circumstances, the only thing which was which seems feasible is the protection under Design Act which also become uncertain when the said design is being manufactured for more than 50 times. Here, the party went for out of court settlement.
Conclusion:
With the growing piracy, the protection of creativity in the fashion industry becomes very important. Therefore, a variety of legislative steps has been taken by many countries all across the globe to bring the designs created by the designers in the fashion industry to come under the umbrella of IPR protection. Similarly, in India which also ensures protection through different branches of Intellectual Property Rights. The problem with protecting designs was that there were certain theories which disregarded the need of having any IP protection as some scholars believed that it is due to low line protection which is provided to the fashion industry that new designs can come up in order to maintain the level of creativity in the field of fashion industry. Therefore, in order to curb this the following suggestions are put forth:
Firstly, there need to have a mandatory provision for registration of all designs under The Designs Act, 2000 so that designer could not rely on the piracy paradox theory for creation.
Secondly, the penal clause must be made more stringent so that not only the seller, buyer could also made liable for selling or buying of counterfeit products.
Thirdly, the amendment must be brought with respect to Copyright Act, under section 15 (2) with respect to number of articles which are being produced. With the increase in this number, it will ensure that the wide range protection to the designs.
Fourthly, awareness must be spread among consumers regarding counterfeited products.
Fifthly, seminars and workshops to be conducted in order to educate the designers regarding their rights and importance of getting their IP right get protected.
