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Fashion Industry and IPR

 

INTRODUCTION

The number of fashion shows and ramp walks to the number of established apparels brands, suggests the growth of a Concept of Fashion in the world we live in today. Fashion design is the skill of creation of clothing and other lifestyle accessories. With the expansion and awareness of this concept called Fashion, there are a number of known fashion brands and designers in the market today. Also increasing the intensity of competition and the zeal to establish their brand name and value, in order to stick around and stay the best in the market. 

Consequential to this boon in the Fashion Industry, is the bane of Plagiarism and Copying of Designs and Techniques. A designer, in order to survive in the market, should not only expand his creativity and learning but also protect their existent creativity and knowledge. Intellectual Property (IP) Laws provide a tool to facilitate the Designers to protect their creation. A number of famous designers resort to getting a copyright against their entire collection, Rohit Bal being the first in India, followed by others like Anita Dongre (the owner of the well-known brand AND), Anita Modi. This article analyses the difficulty faced by these brands with respect to plagiarism of ideas and design, and also try to find solutions which can help these brands protect their interest. 

INDIAN SCENARIO 

Fashion industry proves to be a prominent sector in the retail sector of India. According to the Indian Brand Equity Foundation (IBEF), “The close linkage of the textile industry to agriculture (for raw materials such as cotton) and the ancient culture and traditions of the country in terms of textiles make the Indian textiles sector unique in comparison to the industries of other countries”.[1]  

The Indian Textile Industry constitutes approximately 14 per cent of overall Index of Industrial Production (IIP) and near about 5 per cent of India’s gross domestic product (GDP). The textile industry is also one of the largest contributor to India’s export with approximately 13.5 percent of total export amounting 42.24 billion dollars. Following is the graphical representation of the growth of Indian textile and fashion industry with an increase of $80 Billion from the year 2009 to 2017, having the Compound annual growth rate (CAGR) of 13.5%.[2] Following the same trend of CAGR, it can be said that by 2019, the textile market would value $ 250 Billion Dollors. 

GLOBAL SCENARIO

The existing global apparel market turns out to be worth US$ 1.7 trillion contributing for around 2% of the world’s GDP. European Union, USA & China are the world’s largest apparel markets with a combined share of approximately 54%. As per the Knowledge Paper by FICCI on ‘Global Shifts in Textile Industry and India’s Position’[3], the leading 8 nations in the textile Industry together prove to have a CAGR of 4% which can increase the global apparel market worth to US $ 2.6 Trillion by the year 2025. 

S.No Nation Industry worth in 2015 (US$ Billion) Projected CAGR Expected worth in 2025 (US$ Billion)
1. E. U 350 1% 390
2 U.S.A 315 2% 385
3 China 237 10% 515
4 Japan 93 1% 105
5 India 59 12% 180
6 Brazil 56 5% 90
7 Russia 40 3% 55
8 Canada 25 2% 30
  Others 510 4% 750
  Aggregate 1,685 4% 2,600

Source: FICCI, Knowledge Paper ‘Global Shifts in Textile Industry and India’s Position’, (September,2016)

Considering this contribution of the fashion industry in Indian and global retail sector, it becomes important to understand and protect the interests of the fashion designers and textile industrialists. Plagiarism of designs is a growing issue in the fashion industry and is attributed to the lack of awareness surrounding intellectual property rights (IPR) which are available to fashion designers globally. Even as awareness about IPR protection is increasing in India, the law relating to protection of fashion designers’ rights remains unclear. IP proves to be one such way of protecting the rights and interests of people involved in this sector.

TYPES OF IP VIS-À-VIS FASHION 

All the types of IP, be it trademark, patent, copyrights or design, all work hand in hand to meet this purpose of protecting the rights of fashion industry. Following is the tabular representation of subject matters protected by each kind of IP in a fashion industry. 

S.no Type of IP Subject-matter Protected Lacunas
1. Patents  Invention which is novel, non-obvious and is capable of industrial application Artistic creations and designs are not patentable.
2.  Trademarks  Names, logos, titles, word, letter, graphic artwork, shape of products, words and combination of colours. Creative artwork and designs are not protected. 
3. Copyright Original literary, dramatic, musical and artistic work for a specified duration. Ideas are not protected.
4. Design Shape, configuration, pattern, ornament or composition of lines or colours applied to any article Novelty and non-obviousness are not the essentials. 

TRADEMARKS AND FASHION INDUSTRY

Big fashion houses value their brand the most. It is the recall value and reputation of the brand that contributes to their worth. Trademark is the kind of IP which protects the brand name and the goodwill associated to that brand of the fashion designer. Every designer present in the market holds an image and a brand value with respect to their creativity, which can be protected by trademarking the brand. A famous example in the Indian fashion industry is the trademark of collection owned by the Designer Sabyasachi Mukherjee. Other leading examples of apparels retail brands are Anita Dongre (AND), Fabindia, Biba etc. Some of the leading global brands are Louis Vuitton, Zara, Gucci, Christian Dior etc. 

PATENT AND FASHION INDUSTRY

Patent is a kind of IP that protects new technology and invention which are ‘novel’, ‘non-obvious’ and are capable to be applicable for industrial use. Some of the new technologies which have been patented in the past are wrinkle free fabrics, UV-filtering textiles that are resistant to fire and water-repelling textiles that are incorporated into products.  

An example of Fashion industry subject matter that can be protected through patent is a US grant patent (Patent number- US5064443A)[4] the patent was granted to the inventor Franscesco Ricci for the process of multi-colour dying of a textile. Hereunder is an image of this fabric. 

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Another example of an inspiring success story that depicts the benefits of  protection through patents is for the Danish Biotech company called NOVOZYMES.[5] The company patented a technology for treatment of ‘stone-washed’ denim jeans which helped in removing some of the indigo dye from the clothing to give it a worn look. Today this method is being licensed world-wide and the company holds over 4200 patents where the it enjoys enormous revenue from royalty. 

Image result for Novozymes jeans patent

COPYRIGHT AND FASHION INDUSTRY

The artistic and the graphic work that includes paintings, prints, patterns, shapes used in the fashion industry can be protected through Copyright. This type of IP is one of the most common and well-known one among the fashion designers and brands. There are two major problems which are faced by designers seeking for copyright protection. One of the problem arises from the overlap between the copyright and design laws in India. If a product is commercially used or produced for more than fifty times, it is advisable to protect the artistic work through design laws since the copyright ceases to exist. 

The second problem lies in the subject matter of copyright protection. The copyright protects the design or the print of a clothing and not the clothing or functioning of the clothing itself. For example, the aesthetic pattern used in rain-coat is copyrightable, not its characteristic of water resistance. The US Supreme Court termed this condition as the Doctrine of Separability in Mazer v. Stein[6] and stated that “Copyright protects artistic expressions that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article”. The case involved statuettes featuring male and female dancing figures. The Supreme Court ruled that Balinese statuettes that formed the bases of lamps were copyrightable because the aesthetic work (the statuette) was separable from the functional article (the lamp). Even though they could be used as lamp bases included electric wiring, sockets, and lamp shades, the statuettes had their own artistic merit and could be protected as such.

DESIGN AND FASHION INDUSTRY

The heart of Fashion industry is creation of new designs, and hence among the range of all the available types of IP, Design is the most commonly used and recognized form. A design is the visual appearance of a product that is the decorative pattern on the garments. The Indian law for protection of Industrial Design (The Design Act) only protects the designs which are registered under the act, no protection is extended to unregistered designs. This adds to the lacuna of the Design Laws and hence, in order to protect the rights of upcoming and remote Designers, there is a need for automatic and immediate protection independent from registration. Comparing this scenario to that of European Union, the 2002 Regulation[7] includes provisions to ‘registered design protection’ as well as ‘unregistered design protection’. In United Kingdoms, there are two different legislations to protect industrial design. The first is The Registered Designs Act, 1949, which protects the registered designs. Whereas, the Copyright, Design and Patents Act,1988 having provisions for design rights which subsist an unregistered design.[8]

RELEVANT CASE LAWS

INDIAN CASE LAWS

The above table of types of IP describes that none of the kinds of IP are solely adequate for a designer to protect their rights and interests, whereas a combination of these types of IP is used in order to protect the rights of designers. Along with the above stated lacunas, there are other gaps in these laws which widen the scope of misuse or unauthorized use of another’s IP rights. 

Following are some of the famous case laws which are a consequence of inadequate combinations of IP.

  1. Ritu Kumar v. Biba[9]

This case is an example of the outcome of the muddled understanding of Design laws and Copyright Laws among the designers. 

Both, the plaintiff and the defendants, are famous apparel designer brands in India. This suit was brought by the Plaintiff on the grounds of injunction of their IP laws by the defendant against the garments produced by the plaintiff. The defendant’s contention was that the plaintiff is no longer the owner of the copyright as under section 15(2) of the Copyrights Act. As per the section, a copyright of a design, which is capable of registration under the Design Act but has not been registered, ceases to exist if the design is produced for over 50 times by an industrial process. 

This case becomes relevant as it shows the ambiguity in law because of overlapping between copyright and design protection. Delhi High Court ruled its judgement in favour of the defendant on the grounds of section 15(2). 

Another similar case law which has been referred to is Microfibers Inc. vs Girdhar & Co. & Anr.[10]. In this case, the court held that “In the original work of art, copyright would exist and the author/holder would continue enjoying the longer protection granted under the Copyright Act. If the design is registered under the Designs Act, it would lose its copyright protection under the Copyright Act. If it is a design registrable under the Designs Act but has not 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 protection under the Copyright Act. This interpretation would harmonise the Copyright and the Designs Act in accordance with the legislative intent,”.

  1. Christian Louboutin Sas v Mr Pawan Kumar & Ors.[11]

The area of question in this case is whether a colour acts as a subject-matter for trademark. In India, The Trademark Act, 1999 does not specifically provide for the registration of a single colour, although it does not expressly eliminate the notion. Prima facie, a colour combination stands a better chance of registration. A single-color faces certain obvious hurdles in order to get itself registered. Reason being a single colour is never inherently distinctive. The criteria for getting registration remains the same i.e. they can be registered when they become distinctive by extensive use and acquiring secondary meaning.In this case, the Plaintiff is a famous shoe brand and has trademarked a distinct feature i.e. the Red Sole in every shoe designed and produced by the company. The plaintiff owns a signature design i.e. Red Sole for each footwear. This design is associated for high-end stilettos, which has shiny, red-lacquered soles adding to the brand image and recall value among his clientele. It was found that this signature design was used by two dealers in India by the name of ‘Kamal Family Footwear’ and ‘Adra Steps’. 

 

To the left is the image of footwear from Kamal Family Footwear and to the right is the trademark owned by the Plaintiff, the famous CHRISTIAN LOUBOUTIN Shoes

 The Delhi High Court held the defendants liable to pay a total sum of Rs. 10.72 Lakhs, while they were injuncted permanently from selling the signature ‘Red Sole’. The court observed: “The plaintiff’s trademark is internationally recognizable and has extensive usage in India. The ‘RED SOLE’ trademark also enjoys trans-border reputation in India by virtue of a variety of factors including tourist travel, in-flight magazines, Internet and broadcasting of various films and television programmes. The goodwill and renowned reputation of the ‘RED SOLE’ trademark has spilled over into India from various countries around the world and consumers were well aware of this goodwill and reputation even before the plaintiff’s trademark was first formally launched in India.” 

  1.  People Tree and Dior

In addition to the four common types of IP, the current regime also seeks protection through Geographical Indication as a result of India’s diversity in traditional knowledge and other indigenous art forms. At present, there are 15 kinds of GI tags already registered in India in respect of textiles. A GI tag means goods originating from a specific geographical area has the right to protect such IP originating from such region. 

 A substantial number of designers rely on indigenous and traditional crafts, dyeing, block printing, and embroidery techniques to create new designs and structures. Indigenous methods such as phulkari, kantha, chikan kari & other forms of embroidery & cutting have been used to create apparel designs and revive ancient art forms. 

This case deals with the act of plagiarism of designs by Dior. People Tree is a Delhi based small apparels company. The brand alleged that the famous French brand, Dior, had plagiarised some block printing designs from their apparels. These block prints were made by People Tree in collaboration with the artisans from Rajasthan. 

To the left is the original design owned by People Tree, and in the right is the clothing by CHRISTIAN DIOR worn by the actress Sonam Kapoor in the cover of Elle Magazine

This case is a peculiar one because it becomes important to analyse which kind of IP is best suited to protect the interest of the company People Tree and the artisans from Rajasthan. Geographical Indication of Goods Act could have protected the rights of the artisans from Rajasthan who, in collaboration with People Tree developed the block prints. The underlying reason is because the Government of India has granted villages of Rajasthan a GI tag for such Rajasthani Artistic work. 

However, the ‘dabu’ technique used by the People Tree does not have any GI protection, a flaw perhaps utilized successfully by Dior in lifting the same block prints from People Tree’s creations

The common link that can be drawn from these three famous case laws is that in every case, the Plaintiff could have been entitled to the IPR as against their respective subject-matters, but because of law of understanding at to which kind of IP to resort to and the flawed combination of IP protection, the plaintiffs had to bear the loss. 

INTERNATIONAL CASE LAWS

  1. Star Athletica and Varsity Brands[12]

The case is in the same vein as Mazer v. Stein, dealing with the same concept of Doctrine of Separability. Varsity Brands is the reputed owner of over 200 copyright registrations for two-dimensional designs used on its cheerleading uniforms. In 2010, Varsity Brands initiated a law suit against Star Athletica for infringing the design of five specific cheerleading uniforms. The US District court, in their judgement, ruled in favour of Star Athletica on the ground the designs of Varsity Brands are not copyrightable since they could not be physically or conceptually separated from the basic functioning of the uniforms.  

Five Designs owned by Varsity Brands which were allegedly infringed by Star Athletica

This judgement received a lot of criticism and disagreement from the US fashion designers and The Council of Fashion Designers of America, Inc. (CFDA). CFDA was of the belief that this judgement will discourage the designers to seek for any sort of protection under the copyright laws which undermines their incentive to develop creative designs in future. 

When the case went on to Supreme Court, the judgement was held in favour of Varsity Brands protecting their interest and design rights. The court stated that “if the arrangement of colors, shapes, stripes, and chevrons on the surface of the cheerleading uniforms were separated from the uniform and applied in another medium—for example, on a painter’s canvas—they would qualify as ‘two-dimensional . . . works of . . . art.”[13]

This became the most celebrated judgement of the time. After years of uncertainty and inconsistent application of the Doctrine of Separability, this judgement proves to be relief point for the Designers, widening the scope of Designs that can be protected.  

  1. Louis Vuitton v. My Other Bag[14]

This case is one of its kind as it introduces the Doctrine of Parody which can be seen as a defence for infringement of a trademark. As a general rule, in order to use another’s trademark, one needs a license from the trademark owner. One lesser known circumstance under which no license is the case of parody. Louis Vuitton produces high-end luxury bags and enjoys a good reputation in the Industry for the same, whereas, My Other Bag sells regular canvas tote bags with drawings of various luxury brand handbags on one side and “My Other bag” in large print on the other side.

Louis Vuitton brought a law suit of infringement against My Other Bag for imitating the LV style and logo. 

The U.S. District court as well as the 2nd U.S. Circuit Court stated this to be an ‘obvious’ parody and would instead enhance the brand value of Louis Vuitton bags. In the court’s opinion, a parody is “a simple form of entertainment conveyed by juxtaposing the irreverent representation of the trademark with the idealized image created by the mark’s owner.”  Moreover, a parody “must not only differentiate the alleged parody from the original but must also communicate some articulable element of satire, ridicule, joking, or amusement.” And so the whole idea of ‘My other bag’ not being a luxury brand was parodied. 

CONCLUSION 

The landscape of Intellectual Property has evolved continually over a period of time in the fashion industry. The variance that Intellectual Property protection offers in the fashion industry in terms of the range of works that can be protected using various forms of IP. Upon a careful examination of the different kinds of protection that are being afforded, we can easily recognize the need to protect various other protections, for instance, there is an ardent need to protect patterns, prints, designs through Copyright or Design Law. IP in India is also extremely fluid in order for it to be categorized it in a restricted manner. 

Lack of awareness is also one of the pressing issues that hinders legal protection to creativity/innovation. An indispensable part of the process is regular consultation with IP attorneys to understand the range of subject-matter of various types of intellectual property protections associated with fashion merchandise. From identity to product, IP undergoes a transformation and along with IP Prosecution and Portfolio Management, an important element that usually gets neglected is IP Litigation or enforcement of the conferment of Intellectual Property to the exclusion of others. Enforcement of IP is through exercise of various statutory and common law remedies ranging from Passing Off to Notices of Infringement, Cease & Desist and pursuing appropriate criminal remedies for the same. This is an essential component of Intellectual Property protection and justifies the element of exclusivity granted to the creator. It is also desirable on account of protection of brand from spurious activities, ensuring that the consumers are well-aware and thereby play a crucial role in providing assured quality and reliable brand value. While some remedies of this nature may not require a registration, the same may prove to be a prima facie ownership of IP. This also helps in increasing trust with consumers and pouring legitimacy to the puffery claims of innovation. 

There is a need for the IP Ecosystem to evolve continually and increase the subject-matter that can be protected under law and afford the highest priority to the same. In the Fashion industry, a range of IP protections can be afforded, however, statutes dedicated to the fashion industry in protection of specific works would simplify the process and ensure commitment of the industry towards IP remains intact. 


[1] https://www.ibef.org/ Last viewed on 04-09-2018.

[2] Ibid

[3] FICCI, Knowledge Paper ‘Global Shifts in Textile Industry and India’s Position’, (September,2016) at page 2.

[4] https://patents.google.com/patent/EP0238779A1 Last viewed on 5-09-2018.

[5] https://www.novozymes.com/en Last viewed on 5-09-2018. 

[6] Mazer v. Stein 347 U.S. 201 (1954)

[7] 2002, Regulation on Community designs

[8] Section 216, Copyright, Design and Patents Act, 1988.

[9] Ritika Private Limited v. Biba Apparels Private Limited CS(OS) No.182/2011

[10] Microfibers Inc. vs Girdhar & Co. & Anr. 2009 (40) PTC 519 (Del)

[11] Christian Louboutin Sas v Mr Pawan Kumar & Ors 2018 (73) PTC 403 (Del)

[12] Varsity Brands, Inc., v. Star Athletica, LLC, 137 S.Ct. at 1007;156 F.Supp.3d 425 (S.D.N.Y. 2016).

[13] Id at 1012.

[14] Louis Vuitton Malletier, S.A., V. My Other Bag, Inc. 156 F. Supp. 3d 425 (S.D.N.Y. 2016).

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