Fashion is generally termed as the state of being popular by having a popular style of wearing clothes, having a unique hairstyle, or behaving in a much-admired way of behaving or doing an activity. Fashion also includes a business for selling such uniqueness of styles and things.
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SCOPE OF FASHION LAW
The fashion industry is not only related to the clothing range but it also includes apparel, cosmetics, designs of jewelry items, belts, bags, and labels. The Fashion Industry focuses and includes processes starting from obtaining raw material for the production, manufacture, and even outsourcing of any such process related to the product. Not only this, the industry includes all the marketing as well as after-sale services and even the ramp walks like the Lakme Fashion Week, etc.
FASHION LAW AND INTELLECTUAL PROPERTY
Intellectual Property is defined as an innovation or creation by the minds of individuals or a group of individuals or any invention related to literature, music, or artistic works or designs and symbols any of which is used mainly for trade and commerce. The Intellectual Property provides rights to a person to secure such work of innovation done by him/her. Fashion is all about ideas and designs and Intellectual Property rights ensures that such ideas and designs come under the purview of law.
The Intellectual Property, therefore, provides various rights such as:
These rights ensure that the monetary aspect of the person who invested efforts for innovation gets a reward or a return in terms of money; this further ensures that such person gets individual rights over the innovation and profits, if any, vests in his own hands. These rights also help the economy of a particular country to improve in terms of Gross Domestic Product (GDP).
Innovation in any form would lead to the technological development of both the individual as well as the economy at large.
It is rightly said, a right of one becomes a duty of another that is, if any person secures intellectual property rights, no other person could demand rights for the same, creating a social right for one and social obligation for the other.
Intellectual Property Rights also ensures that the Fashion Industry is dynamic in nature and will ensure that there is a reduction in Monopolistic Market as well as Monopolistic Competition.
PROTECTION OF FASHION IN INDIA
No individual statute governs the laws related to fashion. Several existing laws correlatively govern and help in the functioning and protection of rights related to fashion. India being a signatory to the TRIPs Agreement, the country must abide by rules and regulation of the Intellectual Property Rights. It is interesting to note that, every country which is a signatory to the TRIPs Agreement would have similar rules and regulations.
The laws that govern Fashion Law in India are as follows:
THE COPYRIGHT ACT,1957
Copyright is a right to copy which is a legal right that ensures that the original work of a person is not reproduced by any other person providing the exclusive right to the person(owner of original work) to reproduce such work.
Copyrights secure the artistic features of the work. In the case of Ritika Kumar v Biba Apparels Pvt. Ltd, the scope and interpretation of Section 15(2) of The Copyright Act, 1957 are discussed. The petitioner in this case contends that the respondents have made a colorable copy/imitation of the apparels made by the petitioners. The case explains that the owner tends to cease if the same industrial process (here the apparels made by petitioner) is conducted more than 50 times.
The point of consideration concerning the act lies that, an infringement that is the production of copy (first copy, second copy, etc.) using labels, logos, trademarks of the registered owner is termed illegal. However, Knock-off, which has the same design as the owner with inferior quality, is legal as the government aims at the social upliftment of the society. For example, a street vendor selling the same design of a dress designed by Manish Malhotra would be termed as knock-off and hence it is legal. However, such rights are secured by Section 52 of The Copyright Act, 1957, that deals with the fair utilization of such designs or ideas.
DESIGN ACT, 2000
The Design Act protects the design that has an aesthetic appeal to the finished goods, which can be 2-dimensional or 3-dimensional. The design here also refers to any process and not specifically a function. For example, Designers like Manish Malhotra have a specific process of weaving cloth, this can also come under the purview of the Designs Act, 2000.
However, Design Act, 2000 and Copyrights have a point of distinction that is the Designs Act is generally used where the creation is for a commercial purpose, where the individual can sell more than 50 copies opposed to the restriction in the Copyrights Act, 1957 where the right under former is granted for a period of 15 years. The Copyrights Act, 1957 on the other hand gives a guarantee of ownership for the lifetime of the author and 60 years after the death of the individual to its specified heirs, and a person registered under this law can file a suit against the person, in case of infringement. This is the only reason why Sabyasachi Mukherjee, a famous designer, owns more than 700 copyrights under his name.
TRADEMARK ACT, 1999
This act ensures that any symbol, a word, or a group of words( or phrases) which represent a company is legally secured by registration under the said act. The act provides an unlimited duration of ownership if the said trademark is used continuously, which in turn adds to the goodwill of the company.
In Corning, Incorporated and Ors v. Rajkumar Garg, the court clearly distinguished between a trademark and a design under the Designs Act, 2000. The case mentions that in a situation where the shape of the product registered under both Trademarks Act, 1999 and the Designs Act, 2000, in case of any infringement, remedy so opted could be from either act only and no infringement remedy can be claimed from both the acts simultaneously, depending on the purpose. However, the jurisdiction of the Trademarks Act, 1999 lies in India, therefore a company has to register for trademarks in every country separately, if willing to do so.
THE INDIAN CONTRACT ACT, 1872 AND LABOUR LAWS
Like most of the industry, the fashion industry is a labor-intensive industry and the rights of people working under these industries will be secured by the Labour Laws existing in India. The Indian Contract Act, 1872 will protect the rights and provide remedies in case of performance, breach, etc as the terms may be related to the contract.
IS FASHION SECURED BY THE LAWS ACROSS THE GLOBE?
Fashion is termed as a tradition, the essence of cultures, and the expression and knowledge relate to it, therefore, the cost of protecting every collection owned by the designer cannot be protected. Moreover, the technological advancement in this industry is such that there exist chances of infringement related to designs and e-commerce.
In Star Athletica, L.L.C v. Varisty Brands, Inc, it was stated that a design can be eligible for copyright, where the design of your product specifically identifying a series of design or shape like say stripes on the clothing item here, is protectable interest.
Further in another case of Louis Vuitton Malletier v. My Other Bag Inc. it was stated that a mere parody does not amount to infringement of rights. The case revolves around the contention wherein the respondents used the design of the petitioner’s bag as a parody (a print) on the bags produced by the respondents, which lead to huge losses suffered by the petitioners. However, the judgment was in favor of the respondents.
Also, in Puma SE v. Forever 21 Inc., Puma filed a suit against Forever 21 for infringing the design of the footwear range ‘Fenty’ by music artist Rihanna. The court however dismisses the motion of the design infringement demanded by Forever 21, but also dismisses the claims related to the infringement of copyrights, false impersonification of designs, etc.
In Louboutin v. Yves Saint Laurent, it was stated that the trademark must be ‘distinctive’ and not ‘generic’ in nature. The case revolves around the contention where the plaintiff’s trade dress was a red shoe sole and the all-red shoe of the defendant was stated to be an infringement of the rights of the plaintiff. It was then held that although the trademark is valid, however, if the whole shoe is of the same color, then the suit is not maintainable and hence was dismissed.
The case of Crocs Inc. USA v. Aqualite India Limited, the plaintiff alleged infringement rights on various companies of India. The Honorable Delhi High Court stated that a registered design under the Designs Act, 2000 does not constitute a trademark. The addition of ‘extra features’ thus, can be protected with a trademark and goodwill can be claimed for the same.
According to a survey by the United States, it was found that in 2013, the global revenue from the fashion industry derived amounted to $1.2 trillion. The United States as well as India lacks behind in providing a robust environment for Fashion Law as certain provisions do not protect the rights of the designers, whereas, in European Countries, the fashion law is more flexible as it includes provisions for infringement and even knock-off. Though along with many countries, even India has to go a long way, and there lies no denial that India will achieve the standards for this emerging law as well.
. Delhi High Court; CS(OS) No. 182/2011.
. Section 15, Copyrights Act, 1957
[3.] 2004 (73) DRJ 649, 2004 54 SCL 378 Delhi
. 137 S. Ct. 1002 (2017)
. Louis Vuitton Malletier, S.A. v. My Other Bag, Inc., 14-CV-3419 (JMF) (S.D.N.Y. Jan. 8, 2018)
. Puma SE v. Forever 21, Inc. – No. CV17-2523 PSG Ex, 2017 U.S. Dist. LEXIS 211140 (C.D. Cal. June 29, 2017).
. Christian Louboutin S.A. v. Yves Saint Laurent Am. Holding, Inc. – 696 F.3d 206 (2d Cir. 2012).
. 2019 SCC OnLine Del 6808
BY KHUSHBOO GARG | UNIVERSITY INSTITUTE OF LAW, REGIONAL CENTER, LUDHIANA