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Right from the lanes of Delhi’s Sarojini Nagar, to the high-end fashion brands like Manish Malhotra and Sabyasachi, the people of the country have dynamic tastes and never-ending interests!
India, which is considered the hub of fashion, is pegged at around US$ 120 billion, and in order to protect this industry from the problem of “stealing”, the law acts as a shield and safeguards the rights of such individuals by conferring upon them the right to enjoy their creation for a prescribed period of time and thus, the role of intellectual property rights in the economy is beyond measure.
However, there lies an unfilled gap between the existence of such rights and their application in the real world which has led to the development of the omnipresent problem of copying an individual’s work rather than using one’s own craftsmanship. A similar problem has been in existence since time immemorial and continues to act as a termite in the world of fashion. This problem pertaining to piracy has grown rapidly with ever-changing trends in the fashion industry and may be referred to only as a “tip of an iceberg” since only a few of them are aware of the existence of the problems related to counterfeiting of their designs and their rights associated with it but, the majority still remains unaware of the submerged part which depicts the complications of plagiarizing work of such designers.
The article attempts to conclude that the fashion business is an IP-intensive industry, constantly producing and industrially misusing inventive thoughts and advancement. It focuses not only on analyzing the need for intellectual property in the fashion industry but the problems associated with it.
Piracy and Fashion Design
Piracy may be defined as the unauthorized and illegal reproduction or distribution of materials protected by copyright, patent, or trademark law which is capable of eating up the whole industry slowly and steadily.
Knockoffs are intended to replicate the original design nearly line for line but with another designer’s name attached. In a fashion-intensive country like India, a classic example of knockoffs is that of the infamous Sarojini Nagar Market wherein at almost every shop, such products are sold at a rate that cannot even be compared to that of the designer. Further, in a world that is so techno-friendly, numerous stores with replicable designs and at throwaway prices, are available at just a “one-click” of the consumer.
For Ashlee Froese, partner at Gilbert’s LLP “Counterfeiting is stealing the greatest asset a designer has and that is creativity. That is their main asset, their main product.” Counterfeits are products which are sold in the name of the brand and are so deceptively similar that it cannot be distinguished from the original merchandise.
The Gucci and Forever 21 case is one of the most recent examples of counterfeiting, wherein Gucci had filed a case of trademark infringement for copying their “stripes” design in their clothes.
In another case, that is Castrol India Limited &Ors. v. Iqbal Singh Chawla&Ors., it was observed by the Delhi High Court that the design, color scheme, style, and packaging of the container was deceptively similar to that of Castrol and refrained the defendants from using the mark “Active”.
The fashion industry and Intellectual Property Regime in India
Protection under the Designs Act, 2000
Industrial design is the ornamental or aesthetic aspect of an article and is considered one of the most important aspects for the growth of a product. Thus, being the most useful method to protect a fashion designer in the wake of ever-rising volumes of knock-offs and counterfeits, however, still used sparingly when compared to other available protections.
Protection under the Copyright Act, 1957
Copyright vests in original, literary, dramatic, musical, and artistic works, and when such an idea is converted into a concept, it becomes copyrightable. Another way for protection of designs is the Copyright Act, 1957 which provides for the protection of designs that are either registered or are capable of being registered under the Designs Act, 2000. However, as we look carefully, it is clearly visible that the Copyright and the Designs Act overlap each other thus creating a conflict between the two.
Protection under Copyright law is granted to a design only when it falls within the meaning of “artistic works” which refers to a painting, a sculpture, a drawing (including a diagram, map, chart, or plan), an engraving, or a photograph, whether or not any such work possesses an artistic quality, a [work of architecture] and any other work of artistic craftsmanship.
In Rajesh Masrani v. Tahiliani Design Pvt. Ltd., the Court observed that the work was in fact entitled to be protected as per Section 2(c) of the Act by the virtue of being an “artistic work” and that because the design was artistic, it did not fall within the ambit of Section 2(d) of the Designs Act and therefore was not subject to the provisions of Section 15(2).
A design created from an original work of art, for the purpose of industrial application on an article so as to produce an article which has features of shape, or configuration or pattern or ornament or composition of lines or colors and which appeals to the eye would also be entitled design protection in terms of the provisions of the Designs Act. Therefore, if the design is registered under the Designs Act, the Design would lose its copyright protection under the Copyright Act but not the original painting. If it is a design capable of registration under the Designs Act but has not so been registered, the Design would continue to enjoy copyright protection under the Act so long as the threshold limit of its application on an article by an industrial process for more than 50 times is reached. But once that limit is crossed, it would lose its copyright protection under the Copyright Act. This interpretation would harmonize the Copyright and the Designs Act in accordance with the legislative intent.
The Indian fashion design industry is facing issues of piracy and on the basis of research done, it can be said that the intellectual property system in India isn’t adequate and proficient enough to ensure the Indian fashion design industry.
There is a need to do specific changes in the current intellectual property system in India to make it more ideal to defend fashion design from piracy. Most importantly, a distinct definition of “fashion design” should be included in the Designs Act, 2000. And this definition should assist the whole appearance and overall look of a specific piece of attire or article of clothing as against the current definition under Section 2 (d) of the Act which secures every part of an article of clothing individually.
Author: Richa Bhandari, a student of the School of Law, University of Petroleum and Energy Studies, Dehradun, intern at IIPRD. In case of any queries please contact/write back to us at email@example.com.