Open Access Research Article
RELATIONSHIP OF INTELLECTUAL PROPERTY RIGHTS AND APPAREL LAW IN INDIA: ADDRESSING THE ISSUE OF PIRACY WHICH IS DESTROYING NEW INNOVATIONS IN THE MARKET ECONOMY.
Published Paper
Article Details
RELATIONSHIP OF INTELLECTUAL
PROPERTY RIGHTS AND APPAREL LAW IN INDIA: ADDRESSING THE ISSUE OF PIRACY WHICH
IS DESTROYING NEW INNOVATIONS IN THE MARKET ECONOMY.
AUTHORED BY - NISHIKA
As a young creator I
hope to have a better implication of my mind and would like to share my views
on the issue of piracy which is becoming normalised as per the changing trends
in the society. This definitely helps few but is a serious threat for new innovations
and young creators in the country.
Piracy is the greatest threat to
creativity and because of such practices the efforts of the hardworking people
is going into vain. Piracy is happening at all most all the stages and due to [1]this
people have stopped believing in creativity a mind new creations. In today’s
time we can see piracy almost everywhere. When Sabhyasachi Mukherjee launches a
new collection, it becomes available in the market within few days and that too
at a very cheap price .With this we can see that the rate of piracy is higher
in India. There are many issues faced by the creators in our country. In this
dissertation our emphasis would be on the issue of piracy faced by the fashion
industry and how it is still lacking behind in terms of expansion and more
unique ideas due to piracy extent in the nation.
Let’s talk about the relation between
Intellectual Property Rights [IPR] and fashion law in India. In India, the intersection of fashion
and intellectual property rights (IPR) plays a crucial role
in safeguarding the creative expressions within the fashion industry. Let’s
probe into this relationship and how it is intertwined together. The
intersection of IPR laws and fashion law in India is vast as it goes hand in
hand in a variety of aspects. In this
particular chapter I would like to throw light on the terms which share common
aspects in both the fields.
This includes a
variety of terms like:
1. Design Protection:
2. Trademark Protection:
3.
Copyright Protection:
4. Counterfeiting and Piracy:
5. Licensing and Royal ties:
6. International Trade Agreements:
All these terms are basically
essential to navigate the complex interplay between IPR and apparel law in
India. Understanding of this interplay between IPR and apparel law is essential
for companies operating in India to maintain creativity, brand name, safeguard
their rights against infringement, safeguard their assets and protect the
uniqueness of every design. Though this industry has many flaws and issues but
when both of these sectors merge together it somehow protects each other
against the malpractices in India. All this is important to protect the
creativity and originality of designs such as logos, prints, graphics,
uniqueness of the brand and different style. So that it becomes easier for
people to recognize that this is the original work of the brand and holds
eccentric importance and it’s distinctive in nature. It protects the
exceptional and extra ordinary work of the brand.
Fashion requires creativity and in
India we don’t have the shortage of young creators and minds but the question
is that making copies of popular accessories, designs and logos have led to the
mass availability of the luxury designs in a very basic and affordable rates
everywhere. Designer and luxury commodities are supposed to be exclusive and
should have certain importance but due to the high level of piracy in India and
the skilled people who instead of creating their own designs are keener on
copying the work of other creators. Fashion design piracy is a very open
practice in our market and is all about the unauthorized copying and
distribution of original designs at an affordable price. If we go in the
market, we can easily find out that the copies of big luxury brands and designs
of big designers are available at a very cheap rate and can be purchased by the
common (Placeholder2) public as per their requirement. One of
the most recent market trends is the availability of fast fashion retailer’s
work like Zara and H&M which becomes available at almost ¼ of the original
price in markets. The mass
counterfeiting of the original work of these famous brands have led to their
significant loss and creation of a mindset in the minds of people that these
expensive pieces can be available at a lesser rate.
The protection of intellectual assets
is a challenge for all the big companies as the smaller markets copy the
original work at a rate much faster than in what it was originally made. There
has been an acceleration in the consumerism of creativity by fashion conscious
people and it has led to a fast growth in the counterfeiting of original
products. This might seem like a very small problem but it has atrocious
consequences for the creators who invest there day and night for creating such
prodigious work. Intellectual property rights is the bedrock for protecting a
creator’s work as well as ideas. It protects and safeguards the whole ingenious
process during and after its formation. Though intellectual property rights is
intangible property in nature. The ideas may not be protected, but the
articulation of the idea can be protected.
Pertinent legal provisions that
protect fashion design in India are as follows:
·
The
Designs Act, 2000.
·
The Indian
Copyright Act, 1957
·
The
Trademarks Act, 1999 and GI Act, 1999.
From the perspective of
fashion industry, these relevant acts don’t protect the entire creation but
only protect the particular/individual aspects of it like the unique shape,
pattern, color etc. of the garment.
Fashion law comprises
many laws like labor laws & advertising laws but it is most commonly
studied in the zone of Intellectual Property Rights [IPR].The most important
part in fashion law is played by IPR laws as without its protection designers
and creators would have a hard time floating afloat in the market for the
innovations.
The Fashion Design
Council of India [FDCI] is a not for profit organization that actively endorses
the business of fashion in India and works towards better sustainable growth
.The council also gets together with Textile Ministry and Commerce &
Industry Ministry to improve and enhance the topography of fashion industry in
our country .It organizes events and takes initiatives to promote passable
fashion both in India & abroad.
As far as the sphere of
fashion law is concerned, Geographical conditions play a very important role in
determining the original work of a specified place. Like Lakh ki chudiyan from
Rajasthan, Mysore silk from karnataka, kullu shawl of Assam, Pochampalli sarees
from Andhra Pradesh etc. In India, fashion industry is growing like never
before as the influencer era and availability of fast fashion is in great
demand all over the country. When the demand of a particular thing increases
then its protection also becomes a big query. This is exactly the major
solicitude in our country for fashion law as with the emerging new trends and
market demands, the overall protection of these creations shall also be
sheltered. I would like to tell a real life experience where I saw a local
vendor creating some new embroidered pieces and selling them off at a very
affordable rate. I really liked the work of that artist and even appreciated
him for his commendable art. We as a society should help them if possible. I
went to that place again but the artist wasn’t there otherwise I would have
told him about his rights. With the increase in number of Fashion Designers in
the country and increasing design piracy, it is important to have the active
role of judiciary in this area of law & have relevant legislations. Many
eminent designers like Tarun Tahilian i, Ritu kumar and JJ Valaya have
flourished in protecting their designs and have been involved in the route of
litigation to do the same.
There are two types of
Piracy being practiced in the market which is noted in the fashion industry and
it is:
1. Knockoffs: A knockoff is considered as a close copy of the original
design of the [2]creator
and is a really close mimicry of the original one .It is sold under a different
label name and creates a no connection concept kind of thing. But those who see
and compare both can easily see the similarities in the original and pirated
version. Nowadays Michael Kors bags are easily available in nearby markets at
almost 1/3th of the original price and the quality is also not that bad.
2. Counterfeits: A counterfeit is basically an imitation of the original
design along with its label or logo .It is basically an attempt to showcase it
as the original creation only and to sell of it as the original one only. According
to the organization for Economic Co-operation and Development [OECD], Nike is
the most counterfeited brand in the world. After Nike next in line are Supreme,
Louis Vuitton, Ray-Ban and Rolex. Though there are guidelines and instructions
by original creators to recognize the copy and original ones but still the
expensive rates and popularity of these voguish creations make their mass
availability in the form of counterfeits easier in the market.
Now I would like to throw light on
the legislations which protect fashion law in India:
1. PROTECTION UNDER DESIGNS ACTS: The Designs Act, 2000 protects only
those designs which are been registered and not the ones which are not.
Designers who have registered their creations can only benefit from this act.
The Designs Act is drafted in such a way that it protects all the non
–functional aspects of a particular object ,having visual appeal, such that design that include the features
of shape configuration, pattern, ornament or composition of lines or colours
applied to any two dimensional or three dimensional or on both forms. Such a
design right remains in force for a period of ten years, extendable subject to
conditions, for a total period of 15 years.
Section 22 of The Design
Act states that in the case of piracy of a registered design, the infringer shall be liable to pay the
registered proprietor of the design a sum not exceeding Rs25,000 ($451) recoverable as a contract
debt; if the proprietor elects to bring a suit for the recovery of damages for
any contravention of the rights conferred to him and for an injunction against
repetition of it, damages may be awarded and the person may be restrained by
injunction. The design registration system in India is time bound and the
fastest of all IP registration
procedures. Moreover, in view of the resources invested in creating a
new design, the registration procedure is economical and cost effective.
·
PROTECTION UNDER COPYRIGHT ACT:
The Copyright and Design act overlap each
other on the issue of [3]design protection. A fashion design which is capable of being registered as “design”
under the Designs Act, 2000 and registered as per the provisions of the Act
will get copyright protection only under the Designs Act and nowhere else. In
this scenario, copyright in registered fashion design will subsist for a
maximum period of fifteen years.
Section 15 of The Copyright Act provides for special provisions
stating that copyright shall not subsist in any design, which is registered or
capable of being registered under The Design Act. Another important parameter
of this provision is that copyright in the design shall cease as soon as any
article to which the design has been applied has been reproduced more than fifty
times by an industrial process by the owner of the copyright or with his licence by any other person.
The original artistic work, as
contrasted with the applied artistic work i.e. the design would continue to
fall within the ambit of artistic work under copyright Act and shall be
entitled to full period of copyright protection. The commercial/industrial
manifestation of original work such as the design derived from and founded upon
the original artistic work for the purpose of industrial production of
furnishings would be covered by the limitations under Section 15 of the
Copyright Act.
Hence, a fashion designer seeking to
protect his/her creations under the Copyright Act, 1957, needs to prove:
1)
that his/her creation is an “original artistic work” within the meaning of the
Copyright Act, 1957 and is not a “design” within the meaning of the Designs
Act, 2000; and
2)
that the article (e.g. garment),to which the design derived from the creation
has been applied, has not been reproduced more than fifty times by an
industrial process by the owner of the copyright or, with his license, by any
other person.
2.
PROTECTION UNDER TRADEMARK ACT: A
Trademark is also beneficial for a fashion design in situations where it is
visibly integrated into design to such an extent that it becomes an element of
that particular design. There is a growing propensity among fashion designers
to incorporate a trademarked logo on the outside of the garment at the time of
creation of clothing and accessory designs.
3.
PROTECTION UNDER GEOGRAPHICAL INDICATIONS ACT, 1999: The Fourth schedule of the GI Act provides for a classification of
goods protectable under the Act. The registration of geographical indications
evidently depicts the protection of fashion apparel vis-a-vis the texture and
artistic value in the fabric used to create apparels and accessories. Till now
about, 15 kinds of GIs have been registered in respect of textiles in India
like Kasuti Embroidery from Karnataka, Kutch embroidery from Gujarat, and
Sujini embroidery works from Bihar, etc. This Act provides discernment to
specific geographies which make a particular style or fashion.
The fashion industry is booming at a
very high rate and thus it is important to have legislations which provide
protection to the Fashion Law in our country. There are many evils prevailing
in this industry mainly duplicity and piracy. There are endless cases where the
original work of designers is copied. Most of the upcoming and struggling
designers don’t have the means to protect their designs or take the litigation
route due to financial issues. It’s very important to find resolution for these
designers so that we can enhance creative sector in our nation for a more
fashionable and exceptional industry in the country.
Fashion law can be considered as an amalgamation of various kinds of laws viz. Contract
Law, Employment Law, Consumer Protection Law but most importantly Intellectual
Property Law, which can be regarded as the major tenet of Fashion Law.
As with any field
that experiences the kind of economic boom that the fashion industry did, laws
were brought in to protect the industry's legal and especially IP portfolio and
to regulate every step of a garment's life cycle, from the yarn to the shop
windows. Instances of design piracy and copying are not news to people;
however, the gaining awareness of intellectual property laws has instilled
vigilance within IP creators who previously felt helpless in the face of a
colossal counterfeit market. It has now pushed designers and manufacturers
alike to become aware of their legal rights and accordingly take necessary
steps to protect their interests.
The debate regarding
the fine line between inspiration and piracy rages on in the fashion world. As
the industry continues to grow and bloom new laws will be introduced, and older
ones will be revised with input from the stakeholders of the fashion business
so that better establishments can be done in the fashion industry.
THE EMERGENCE OF
FASHION LAW IN INDIA:
Fashion law has been
in practice both in-house and in law firms for decades, particularly in France,
which is a no-brainer being the fashion capital, where protection of designs
has been in place for over a century. We have heard of new terms like
Fashion-specific copyrights and trademarks which is a very recent establishment
in the field of design industry. Laws in fashion industry is an emerging field
and is developing with time to meet the needs of the creators and developers.
While fashion law
comprises a variety of legal fields, such as labour laws and advertising laws,
it is most commonly studied and administered within the sphere of intellectual
property laws, categorically the production of knockoff goods with and without
the original brand logo, as well as outright copying of design elements by one
manufacturer of another.
Without legal recognition and protection of
their own on their designs and trademarks, the brands and designers that lead
creative and technical innovation in the fashion industry would have a
difficult time staying afloat and creativity would be a big issue for them
because without good measures and protection of these designs and creations
they would be worthless.
A major sign of the augmenting interest in fashion law from across
the legal, industrial, and academic spectrum came in 2011 when the New York Bar
Association established the Fashion Law Committee to "study and comment on
a wide range of legal issues associated with the fashion industry”.
Today, several law institutes offer courses and programs in the
field of fashion law, and the legal side of the industry has become a main
point of education in fashion and design institutes across the world, as the
need to be aware of one's rights, becomes increasingly obvious to succeed in
this business and have a business in this line. Fashion Law in India is a very
recent field and has not yet done all the establishments it still has to cover.
It has a long journey to cover yet.
As we all aware the Indian textile Industry
has been developing since many years ago and it is continue developing by
creating the new innovation,
Now day’s people attract more towards the
trending item and buying unique product that they are not bought before.
In the film industry the actors are using
or promote the more attractive product and unique both off and on screen and
their fan try to follow their favourite actor which result in the increase of
economy. In addition to being a rich source of intellectual property, the
fashion industry is continually inventing and pushing fresh concepts and
developments. The creative process goes beyond the design phase and include
product marketing and advertising campaigns, regardless of whether it is for
ready-to-wear or haute fashion.
This
is necessary in order to achieve the requisite competitive distinction that is
necessary for success in the fashion business. It is only very recently that
society has accepted fashion as a valid creative activity, despite the fact
that it has been around for a very long time and has had a significant impact
on significant historical events. The one who exhibits a creative and artistic
tendency is referred to as a designer. The rich visual imagination that fashion
designers possess enables them to manifest their ideas and thoughts into
clothing, which is a significant feature of their work.
The creation of intellectual property (IP)
takes place when an individual makes use of their intelligence and creativity
to generate a work that is unique, distinctive, or innovative which is a result
of their determination and hard work and should be protected at all costs.. IP
in fashion industry is very important so that fair opportunities and real
competition for creativity can be seen in the market. A fair and true
competition spirit can take the Apparel Industry in India to greater height and
better platforms.
As
fashion is derived from the person intellect and by his creativity thus it is
come under the ambit of Intellectual property law. However, a result of
counterfeiting, the company that originally owned the item suffers both
financial loss and damage to their recognition as well as place in the fashion
market. In order to aid in putting an end to such piracy and counterfeiting, it
is now necessary to use or manage intellectual property in an efficient manner
which will enable the creators to enjoy 100% credit and benefits of their
original work and hardwork. From the very beginning, fashion designers have a
responsibility to make certain that their intellectual property rights are
protected and handled in an acceptable manner where there would be less issues
and problems for the particular collection.
Ayushi Verma, Fashion and IPR Laws in India, Fashion
and Law Journal(Mar 1, 2024, 10:43 PM), https://fashionlawjournal.com/fashion-and-ipr-laws-in-india/
Shivani Vora,Fashion and Intellectual Property, Legal
Service India(Feb 24, 2024, 08:15 AM), https://www.legalserviceindia.com/legal/article-3317-fashion-and-intellectual-property.html#google_vignette
Chadha & Chadha IP,
https://www.candcip.com/fashion--ip (last visited Jan 25, 2024)
Arushi Singh,The Significance Of Intellectual Property
Rights In The Fashion Industry(Feb 15, 2024, 02:34
PM), https://theamikusqriae.com/the-significance-of-intellectual-property-rights-in-the-fashion-industry/
Shishir Tiwari, Intellectual
Property Rights Protection of Fashion Design in India:A Panoramic View(Mar 04,
2024,05:17PM),https://www.researchgate.net/publication/269106421_Intellectual_Property_Rights_Protection_of_Fashion_Design_in_India
Article Information
RELATIONSHIP OF INTELLECTUAL PROPERTY RIGHTS AND APPAREL LAW IN INDIA: ADDRESSING THE ISSUE OF PIRACY WHICH IS DESTROYING NEW INNOVATIONS IN THE MARKET ECONOMY.
Authors: NISHIKA
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/24
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
All research articles published in International Journal for Legal Research and Analysis are open access and available to read, download and share, subject to proper citation of the original work.
Disclaimer: The opinions expressed in this publication are those of the authors and do not necessarily reflect the views of International Journal for Legal Research and Analysis.