Abstract
Taking inspiration from a celebrity’s dress or look at a fashion event is the newest and most popular trend of dressing up like that celebrity on social media. The fashion sector, which is renowned for its dynamic and trending nature, frequently has difficulties when it comes to protection and upholding the intellectual property rights.
Laws related to Intellectual property and fashion industry are twisted together, forming a vast and reforming landscape. Due to its relative lack of research, intellectual property law has many unanswered questions that could be answered with careful consideration and analysis. Fashion and how to protect it.
It is not surprising to know that people get same logo and design by local tailors or boutique designer as original. Accepting this demoralizing status of fashion in India, for it`s protection under intellectual property rights, merits, demerits and solution are provided below.
This paper will provide you the general review on the history, origin and background of intellectual property rights in relation to fashion industry followed by legal aspects. The aim is to lay down the essence of law and statutes governing the same.
This paper will provide a brief definition of the terms, listing the merits and demerits of the same. In last conclusion is provided which will give solution and suggestions for this not so explored loophole in this sector.
Introduction
Fashion is something which does not exists in dresses only, it`s in sky, street, fashion is everywhere. Fashion laws and intellectual property rights are the only laws which protects design. Given how innovative and creative the fashion industry is, it is imperative that designers’ rights and interests be protected. IP regulations are essential for safeguarding the fashion industry’s intellectual property rights, which include designs, patents, trademarks, and copyrights. It is not necessary that the IP laws which applies on other industries applies on fashion industry, for example Garment design may be protected under design pattern where as fabric patterns may be protected under design patent. Intellectual property rights and fashion laws have become increasingly intertwined in the recent years. This focus of IP and fashion laws has led to the development of specific laws and guidelines aimed at the fashion industry.
For example “DesignEuropa Awards,” is organised every two years by the European Union Intellectual Property Office (EUIPO).This event celebrates excellence in design brought to market with Registered Community Design (RCD) protection. Similar to this Indian Indian government has launched several safeguard to protect traditional work, handicrafts and others works but counterfeiting is one of the biggest problem which is faced bi IP and fashion law. Counterfeiting is the major issue which is harming the fashion sector’s financial stability.
To remove the counterfeiting and to protect the rights of the individual, IP laws are very necessary which will be the safeguard of the fashion sector. At last, fashion industry is a crucial intersection between intellectual property and fashion law. Fashion industry need laws to protect its uniqueness and ensure the profitability and expansion of fashion sector without getting counterfeited.
Laws Protecting Fashion Industry
Lots of laws are there which are protecting fashion industry under IP some of are listed below:-
• Copyright Act, 1957
• Trade Marks Act, 1999
• The Geographical Indication Act of Goods Act, 1999
• The Design Act, 2000
The Copyright Act provides exclusive rights under section 14 to the owner of the copyright. This section provides rights to copyright owner or another person who has permission of the owner may exercise these rights. These rights include the ability to adapt, reproduce, publish, translate, and communicate with the public, among other things. Copyright registration just establishes an entry for the work in the Copyright Register kept by the Registrar of Copyrights and does not grant any rights.
When a design is transformed from a simple to unique, it’s uniqueness is obvious from its existence, it comes under the category of creative work, which comes under section 13 of Copyright Act 1957.
Section 2(c) of copyright act defines “artistic work” which means designs in any form such as sketches, painting, patterns of cloths, sculptures, costumes and accessories are capable for copyright protection.
Trademark is an Intellectual Property Right which protects logos, names, words, shape, symbols, configurations, symbols of colour, packaging etc. Protection against trademark becomes essentials so that consumer can easily differentiate between the goods. Under section 103 and 104 of Trademark act 1999 strict punishment is given for trademark infringers.
Meaning of design is laid down under section 2(d) of The Design Act 2000, design means configuration, patter, shape, ornaments, composition of lines, colours applied on any article, whether in 3 dimensional or 2 dimensional or both forms etc. it is clearly stated that a design which is registered under Design Act 2000 will not be eligible for protection under copyright act. Copyright in any design which is capable for registration under the act but does not registered shall cease as soon as the design is reproduced more than 50 times by the owner of the copyright or by any person authorised by the copyright owner. According to Copyright Act of 1957, design registration and copyright over an item cannot be coexisted.
Differentiate between Inspiration and infringement
Inspiration is an act of being enthusiastic to act, think or produce in a way that it is creative or original. It is a condition in which new ideas, behaviours, or artistic expressions are produced as a result of being moved, inspired, or propelled by an external or internal force. There are different sources of inspiration, such as reflection, people, events, books, artwork, music, and much more. The process of being inspired to create or invent is called inspiration, and it needs to be closely studied to prevent infringement. If original and distinctive works are to be protected by IPR, it must distinguish between inspiration and imitation rather than exact or counterfeited copies.
At the time of deciding a work whether it violates a pre-existing invention which is protected under Copyright act, Trademark Act or Patent Act, inspiration enters into intellectual property right. Courts and legal systems often compare the works to see if the allegedly infringing creation was directly inspired or developed from the original.
The word infringement means the action of breaking of agreement, law etc. it may refer to :-
1. IP infringement :- it violates an owner’s exclusive rights to his intangible assets like musical work literary work or artistic work.
• Copyright infringement :-it is the use of work under copyright, including reproducing, distributing, performing or displaying the copyrighted work without permission
• Patent infringement :- it means using or selling a patent invention without the permission of the patent holder, typically for commercial purposes.
• Trademark infringement:- it is the violation of the exclusive rights attaching to a trademark without authorisation of the trademark licensees.
• Summary offence :- it is a crime that can be proceeded against an indictment in some jurisdiction.
According to section 27 and 29 of Trademark Act 1999, infringement can be done either by passing off, in line with the principle of trinity or it can be compensatory and preventive in nature.
Section 52 of Copyright Act 1957 plays an important role, it states the fair dealing in a wide exception in this regard, in the same way that cases of inspiration being an infringement defer in terms of the facts, issues, and verdict, it will also defer.
All in all, the overall situation remains the same, judges have the discretion to grant or reject the exception based on each case individually.This paper aims to establish a standard guideline, scheme, policy, or any other government schemes in order to maintain Pan-Indian uniformity and give the court’s jurisdiction a primary and prominent role in deciding the cases.
• Inspiration in connection with IPR and Fashion Law Industry
The fashion industry is always changing, bringing new trends and styles that are imposed all over the world. The rights to IP that arise from these creations must therefore be preserved. This covers a number of additional intellectual property rights that can be safeguarded, such as the protection of each garment’s unique industrial design and the name or trademark that helps people realize these products. Intellectual property has turned into a crucial component of the multimillion-dollar fashion industry, strengthening the value of businesses in the marketplace and encouraging business growth.
Section 15 of Copyright Act lays down two important provisions regarding the counterfeiting of designs which are capable of being registered under the Design Act. The design must be protected as an artistic work under the copyright act or it should be registered under the Design Act 2000. If design is not registered under the design act then the copyright act will be used to settle the legal disputes.The copyright protection for a design expires if it is copied more than fifty times through an industrial process by the owner of the copyright or by someone else with permission from the owner.
In the fashion industry, designers’ and brands’ creative processes heavily rely on inspiration. But sometimes it’s difficult to differentiate between inspiration and infringement when it comes to intellectual property rights (IPR).
It is essential for designers to exercise caution in order to prevent their works from infringing the copyrights, patents, or trademarks of other designers or brands. Fashion designs are generally not protected by copyright laws in many countries unless they satisfy specific requirements. For fashion brands to maintain their unique identity and safeguard their distinctive names, logos, or symbols, trademarks are essential.
The term “trade dress,” describes a product’s overall visual identity and packaging and may be used as a source identifier, is also important in the fashion industry. Trade dress protection can cover things like distinctive color schemes, patterns, or particular product packaging. When designs or components of fashion creations are too closely modeled after or resemble already-protected works, intellectual property rights (IPR) issues may arise in the fashion industry.
Merits of recreation
Under the laws controlling the fashion industry and intellectual property rights (IPR), inspiration can have various benefits. They include :-
• Protection of original designs, the promotion of creativity and innovation, and the interchange and influence of cultures.
• In the fashion industry, inspiration serves as a stimulant for creativity, inspiring designers to create original and innovative styles, trends, and designs.
• It protects original designs legally and encourages diversity, innovation, and cultural trade. In the fashion industry, IPR offers original designs legal protection.
• Use of intellectual property laws like copyright and design rights, designers can prevent unauthorized use or counterfeiting of their creations. This encourages designers to dedicate their time, energy, and resources towards crafting novel and distinctive fashion designs. Differentiating a brand and its reputation: One can use inspiration effectively.
Demerits of Recreation
• As of 2023, there has been little research done in the field of intellectual property law. And this is a serious demerit. Recreation being an infringement is a species under this large genus of problem or loophole. It is illegal to copy another person’s design since original designers own the rights to their creations. The law protects fashion details and designs, such as when a designer brand has a registered trademark. No other company can match its methods of branding or designs.
• Counterfeiting fashion designs of another brand to suit a different branding strategy can be challenging. Growing the work and starting more campaigns with the same idea can also be challenging. This may result in a dispersion of the same message and a loss of visionary meaning and context. The infringer’s brand may suffer if they steal another company’s trademark.
• Counterfeiting competitors’ work can lead customers may become less confident in the copied company and may decide to use an alternative brand. In addition, it keeps one from testing their own designs and marketing plans, enabling them to build their business on reliable client feedback.
Conclusion
The act of being inspired to create, think, or act in an unique, innovative, or remarkable way is known as inspiration. It is the state of being propelled, motivated, or pushed by an internal or external force that gives rise to original ideas, actions, or creative expressions.
There are many different places to get inspiration, such as within oneself, other people, experiences, books, artwork, music, and much more. It is important that we understand and recognize this idea. On the other hand, this should respect the earlier art and not be offensive to it. It is considered an infringement of the latter when someone attempts, with due knowledge and intent, to mimic, copy, embody, or replicate a well-known work of art.
If it satisfies the Section 52 of the Copyright Act, 1957’s fair dealing requirements, it cannot be considered an infringement. First of all, the fair dealing clause should be interpreted literally rather than liberally. Second, the work of art should be maintained on file, rather than the inspiration author remaining unknown or posing as anonymous. Thirdly, because the scope of exceptions is broad, a department inside the Patent Office specifically handles these kinds of matters.
Important persons who may be covered by the department include a patent agent, a retired first-class judicial magistrate who deals with civil matters involving intellectual property, and a part-time professor of intellectual property. Fourth, the Central Government can issue a notification containing guiding principles in the official gazette.
About the author –
This article is authored by Abhinav Saxena, LL.B (Hons) 5th semester student at Uttaranchal University, Dehradun.
