Protecting the Fashion Industry – A comparative analysis of Intellectual Property Protection (IPP) in India and the Western World
July 24, 2022
Fashion in India dates back hundreds of years and is steeped in rich traditions. India’s textile heritage is diverse and rich, with each area and state having its local costume, traditional clothes, and accessories. In this globalized era, India’s fashion industry is rapidly evolving to keep up with worldwide trends and with significant growth in the previous decade attributable to the rise of homegrown designers, some of whom have achieved international acclaim in recent years. The increase in the number of significant fashion events in India demonstrates the expansion of the fashion industry.
In today’s world, fashion is much more than just clothes and accessories. Intellectual property has played a significant part in the fashion industry’s rapid growth. Various innovations in the fashion business, such as components of fashion design, artistic and literary work, pictures, and symbols utilized in commerce and trade, can be protected under Intellectual Property Law.
However, it should be noted that there have been just brief glimpses into the many categories of intellectual property and their relevance to the fashion business. The present study sheds light on protecting the fashion industry by looking into a comparative analysis of Intellectual property protection in India and the western world.
Intellectual Property and the Fashion Industry
The basic goal of intellectual property law is to safeguard a person’s ideas and concepts, whether they are in the fashion business or not. It is important to remember that while an idea cannot be protected, the artistic manifestation of that idea can be and is protected under intellectual property law. Copyright, trademarks, and patents are all examples of intellectual property law.
Another important point to remember is that the fashion industry encompasses more than simply clothing it also covers accessories, footwear, and jewelry. Because the fashion business has been constantly expanding in recent years, there is a pressing need to protect items in terms of their innovation and other processes associated with them. Fashion design is a suitable subject matter for IPR protection because it is a product of human knowledge and imagination.
However, agreement on the need for fashion design protection under the IPR framework is proving difficult to come by. On this subject, conflicting viewpoints have been expressed, with some confirming the urgent need for IPR protection for fashion design and others denying the existence of such a demand. A variety of articles have been written in support of and against IPR protection for the fashion industry in general and fashion design in specific.
Legislation regarding the Protection of Intellectual Property in the Fashion Industry
Protection under Copyright – In the fashion sector, copyright protects designers in the form of originality and artistic effort. The definition of creative work in Section 2(C) of the Copyright Act is fairly broad, and it includes artistic work that has little visual appeal. Registration is not required to seek copyright protection, but it is recommended. When a design is registered under the Design Act, however, it ceases to exist.
Protection under Design – In relation to fashion, design for fresh and original designs, the industry protects the designer. Only the registered design, whether in the form of features, shapes, colors, patterns, ornamentation, line compositions, and so on, is protected under the Design Act. The registered designs are protected for a term of ten years, with the possibility of an extension to fifteen years in some situations. The Design Act’s registration approach for design is the quickest of all the Intellectual Property registration procedures in India. Once registered, the proprietor owns full rights to the design, including protection from knockoffs and counterfeits. The punishment for design piracy is stipulated in Section 22 of the Design Act in the form of damages.
In the case of Pranda Jewellery v. Aarya 24K which was decided by the Bombay High Court. Infringement of copyright in the context of gold sheet articles of deities and non-secular symbols is the subject of this case. The court used the analogy of reproducing a painting onto a canvas or paper to demonstrate how the aspects of shape and configuration are not applied when the picture is duplicated, but the painting itself is recreated. When aspects of shape or configuration are applied to goods such as a refrigerator or a mixer, however, the court determined that the ‘features or patterns, while they’re contained in drawings, diagrams, or blueprints and though they’ll have a commercial value.
Protection under Geographical Indications – The GI Act’s fourth Schedule classifies the goods that are protected under the law. The preservation of texture and creative value utilized to manufacture fashion garments or accessories is represented by GI registration. GI, when combined with trademark and copyright, has the potential to grow and integrate into a creative economy, making it invaluable to rural communities.
Protection of Trademark – A trademark, as defined by Section 2(ZB) of the Act, is a mark that is effective in distinguishing others’ work/goods/art, including packaging, shape, and so on. A trademark considers three factors customer interest, trademark owners, and market rivals. When a mark is incorporated into a fashion design, trademark law comes into play in the fashion sector.
Protection under Patent Law – Fashion patents give the inventor/owner legal ownership of their work, which might be in the form of a product or a technique in the fashion business. The creator must pick dual protection to protect its idea under both design and utility patents as part of its strategic planning. Design patents are valid for 15 years after they are issued, while utility patents are valid for 20 years after they are filed.
Intellectual Property Protection of Fashion Design in Western Countries
Many intellectual property laws protect fashion design, including trademarks, design patents, and copyright. A trademark, in general, is a name or sign that identifies the source of products or services. The ornamental design of a practical item or commodity is protected by a patent. Copyright covers a variety of forms of expression, including article design. When it comes to fashion design protection, however, these regulations essentially overlap. In most nations, including the United States and Thailand, a patent’s scope is broadened to include a variety of areas.
A patent is an exclusive right awarded for an invention, which is a product or a technique that generally gives a new technical solution to a problem or a new way of doing something. The most closely related to fashion design is the design patent, which is based on decorative, non-functional elements. The patent owner has the sole right to license the innovation or design to third parties. After a patent period, which is normally 10 to 15 years for a design patent and 20 years for an invention patent, the exclusive right ends. Although trademark, design patent, and copyright can all be used to protect fashion design in the United States, each type of protection comes with its own set of challenges.
However, the US Supreme Court has issued only a few rulings establishing whether or not fashion design should be protected under any intellectual property laws, and if so, to what extent. Clothing designs constitute utilitarian functions or “useful articles” under section 102(a)(5) of the Copyright Act, hence copyright protection for fashion design has been limited. Some US courts of appeals have devised distinct methods for establishing the separability of protected and unprotected portions. In Star Athletica, LLC v. Varsity Brands Inc., the US Supreme Court eventually determined the subject of copyright separability.
It can be stated that the various innovations in the fashion business, such as components of fashion design, artistic and literary work, pictures, and symbols utilized in commerce and trade, can be protected under intellectual property law. But, the fashion industry’s intellectual property protection has significant flaws. One crucial conclusion to be derived from this is that present protection measures in the garment sector must be reconsidered urgently.
The fashion industry’s intellectual property protection has to be revamped. In addition, fashion designers must educate themselves on IP protection and decide the optimum type of protection for their items. Finally, individual rights must be made more aware for a country to develop through its intellectual property. The same can be accomplished by fixing current gaps in the fashion industry’s protection through legislation.
To sum up, registering a corporation or a brand name helps the owner safeguard their work and creativity from being illegally duplicated and used. As a result, a fashion brand must register to protect the misappropriation of its ideas and designs. Although the process of registering a brand might be costly and time-consuming, it can help designers protect their products in the long term. The government should also begin to monitor emerging types of brand creation copying and enact legislation to safeguard the original work. For counterfeiters and owners to appreciate the relevance of their innovation, they must educate themselves.
Editor’s Note – The article talks about the protection of fashion using various laws. It is a comparative study between the laws in India for fashion and the remainder of the western world. The article emphasizes the use of copyrights and patents to protect fashion designs and manufacturing processes and contrasts them with the rest of the world. It comes to the conclusion that India’s IP Protection for fashion is lacking and needs urgent reconsideration. If this need is met, India will have a robust and well-proportioned mechanism for tackling fashion IP-related problems in the future.