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Demystifying Fashion Law in India

09

NOV

2021

One of the niche areas of law, Fashion Law, is growing in existence in India. There might not be a central piece of legislation that governs the subject but the realm of fashion, with all its variants, has definitely piqued an interest in the Indian legal fraternity with many exploiting services in the fashion industry. The fashion industry in India has a long and rich history dating back to ancient times, before the word ‘industry’ had even entered the economic glossary of the world. Following Independence, the sluggish fashion scene of India saw a meteoric rise in its growth thanks to economic liberalization in the early 1990s which brought much-needed foreign investment to the industry and exposed the Indian public to global fashion trends, while also making the rest of the world sit up and take notice of the diversity in Indian fashion designs.

Fashion Law can be defined 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. In such a contentious climate, it is far too important for the various entities of the industry to have a clear understanding of the Laws that protect them, both from piracy and from claims of piracy. While Fashion Laws in India are not without their shortcomings, they have by no means reached a state of completeness. As the industry continues to grow, new laws will be introduced, and older ones will be revised with input from the stakeholders of the fashion business.

The emergence of Fashion Law

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. However, fashion-specific copyright and trademark protection laws are a more recent phenomenon; meaning that for a long time, general copyright laws were used to enforce design protection in the fashion industry. As a result, fashion law as a legal specialty is still considered an emerging field around the world.

While fashion law comprises a variety of legal fields, such as labor laws and advertising laws, it is most commonly studied and enforced within the sphere of intellectual property laws, specifically 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.

A major sign of the increasing 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”.Over the years, organizations like the FLC have promoted the discussion and education of Fashion Laws among law firms as well as fashion businesses, and have organized panel discussions on subjects as varied as licensing issues, trademark and copyright laws, emerging markets, and the impact of Covid on the fashion industry, among others.

Today, several law institutes offer courses and programs in the field of fashion law, and the legal side of the industry has become a focal 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.

Fashion Law in India

Among the advocates for stronger and more complete fashion laws in India, a primary entity is the Fashion Design Council of India (FDCI). The FDCI is a not-for-profit organization that promotes the business of fashion in India and works towards its sustainable growth. It organizes several prestigious events, including the bi-annual India Fashion Week and the India Couture Week. The Council collaborates with the Indian government’s Textile Ministry and the Commerce & Industry Ministry, to help improve the landscape of the fashion industry in the country and organizes events and initiatives that promote sustainable fashion both in India and abroad.

In India, the key laws that regulate and protect intellectual property rights in the fashion industry are the Copyright Act, 1957; Designs Act, 2000; The Geographical Indication Act of Goods Act, 1999; and the Trademark Act, 1999. While the existence of these many laws may suggest a comprehensive system is in place to protect designs, that is not always the case. Furthermore, the inconsistent correlations between these Acts can often lead to perplexing scenarios at best, and legal loopholes at worst. Therefore, to be knowledgeable about how to protect fashion designs, it is important to understand these laws both in isolation as well as in relation to each other.

Firstly, Section 15 of the Copyright Act, 1957, lays down two key provisions regarding the copyright of designs that are capable of being registered under the Designs Act:

  • Copyright protection under the Copyright Act and registration of the design under the Designs Act cannot co-exist, i.e., the design must either be protected as an artistic work under the Copyright Act or registered under the Designs Act. If it is not registered under the Designs Act, then the Copyright Act will be used to settle any legal disputes.
  • Given a Design that is protected under the Copyright Act that can be registered under the Designs Act but is not registered so, if the said design is reproduced more than fifty times by an industrial process by the copyright owner or by another person under license from the owner, then the Copyright protection for said design will cease to exist.

The second provision is especially important to understand the complications of protecting one’s design under the Copyright Act instead of the Designs Act. As the plaintiff in the Ritika Private Limited v. Biba Apparels Private Limited case discovered the hard way, depending on the Copyright Act alone to protect one’s design from being reproduced by other manufacturers comes with some nasty limitations: if the said design is reproduced industrially more than fifty times by the copyright owner themselves, as would be expected of a fashion brand, that design loses its copyright privileges and becomes freely available to be reproduced by other manufacturers via an industrial process. In this case, the plaintiff Ritika Private Limited, brought a suit against the defendant Biba Apparels, alleging that the latter had violated the plaintiff’s copyright over certain designs by using it in their products. However, as the said design had not been registered under the Designs Act and had been reproduced more than fifty times by the plaintiff themselves, the court ruled in favor of the defendants. In a similar case where the plaintiff had sought protection for a design not registered under the Designs Act but which had been reproduced fewer than fifty times, the court ruled in favor of the plaintiff.

Under the Designs Act, a “design” is defined as “only the features of shape, configuration, pattern, ornament or composition of lines or colors applied to any article whether in two dimensional or three dimensional or in both forms, by any industrial process or means” but with some exclusions, chief among which is that it should not include any trademark or artistic work as defined in clause (c) of Section 2 of the Copyright Act. This means that a fashion design that is a trademark cannot be protected under the Designs Act, and a fashion design registered under the Designs Act cannot be protected under the Trademarks Act.

Furthermore, the Designs Act prohibits a design which:

  • is not new or original; or
  • has been publicly disclosed anywhere in the world prior to the filing date; or
  • is not significantly distinguishable from known designs or combination of known designs; or
  • comprises or contains scandalous or obscene matter.

Once registered, the owner of the design is granted copyright in this design for ten years from the date of registration, which may be extended for the second period of up to five years.

As stated by the court in the ruling of the Ritika v. Biba case, copyright helps in protecting the original expression of the “artistic work” and offers limited protection to the commercial exploitation of the same, whereas the Designs Act is primarily used to protect the industrial application of the design.

It can be inferred from this information that, of all the applicable laws in India, the Designs Act is perhaps the one most relevant to the interests of the country’s fashion industry, and that is not far from the truth. For any commercial fashion designer, it would be more financially viable for them to protect their design under the Designs Act than to rely on the Copyright Act. However, the Designs Act is not without its flaws. Registration of a Design under this Act can take several months to complete, which is detrimental to an industry that produces new designs at a breakneck speed. Sometimes, the time taken to register a design may even be more than the shelf life of those designs as applied to an article of clothing. This inconvenience could be a source of financial and logistical hindrance to fashion designers.

Lastly, Geographical Indications are primarily used to protect products based on their geographic origin. Within the domain of fashion, it is applied primarily to handicrafts, such as Kandangi Saree from Tamil Nadu, Kullu Shawl of Assam, or Mysore Silk, etc. Provisions under this Act help protect indigenous populations from having their creations copied by outside entities. For example, a designer in Punjab cannot claim to produce Chanderi Sarees, which are produced in the Chanderi town of Madhya Pradesh. These Geographical Indications are combined with similar laws in other countries to protect these products in international trade. However, the question arises on the knockoffs of fashion designs. The big fashion houses may be able to protect the IP in their products by having access to resources, but the same cannot be said about local designers and/or creators. These local and indigenous creators are not well versed with the legal tenets and are more often than not strong-armed by the big fashion houses who either copy their work and commercialize the same or buy off the artistic designs at a considerably lesser price; exploiting the commercial knowledge of the local creators and going on to make a huge amount of money on hard work of others. Another issue is also with respect to the number of duplicates or first copies, as they are commonly referred to in Indian street fashion. Many big brands have their exact designs copied and sold in variety in a number of street shops in major cities. The volume of such first copies is so huge, it becomes difficult to identify and pursue legally against such sellers.

Conclusion

Fashion law is evolving and with it, the need to identify and implement relevant laws is also growing. While countries like France and the USA are ahead in regulating fashion, laws in India are not quite focusing on the same. Organizations like FDCI that advocate on behalf of a significant demographic of the fashion industry have been in place for a while but the recent boom in digital media has brought to light several more issues that members of the Fashion fraternity, both the elite and the smaller players, have faced. Well-known social media accounts like @DietSabya on Instagram and other vigilant shoppers have highlighted glaring examples of design piracy in India’s fashion world. These issues can be corroborated in light of recent cases entertained by the Indian judiciary, which highlights that people have become more aware and are trying to enforce their rights with much more rigor and by such actions, the law and remedies available can be better explored and expanded, and the issues can be addressed by providing a uniform code of conduct and direction to the Fashion industry.

While the protection offered by current laws is not complete in any sense, that does not mean fashion designers should disregard what limited protection they are afforded, as doing so would lead to heavy financial losses and falling behind in the competitive fashion market. Advocating for better protection while making full use of the legal tools at your disposal to protect what you create is the smart thing to do for anyone working in the fashion industry. To conclude, it can be said that while fashion law is at the stage of infancy and having a comprehensive law on fashion may not be an immediate need, but there could be amendments in the existing laws to include fashion in a better and extensive manner to lay down stepping stones towards the same.

Author: Vidushi Trehan – Legal Associate at Khurana & Khurana, Advocates and IP Attorneys. In case of any queries please contact/write back to us at vidushi@khuranaandkhurana.com.

About the Firm

Khurana And Khurana, Advocates and IP Attorneys
Address E-13, UPSIDC, Site-IV, Behind-Grand Venice, Kasna Road, Greater Noida - 201310, UP, National Capital Region, India.
Tel 91-120-4296878, 91-120-4909201, 91-120-4516201
Fax 91-120-4516201
Email info@khuranaandkhurana.com
Link www.khuranaandkhurana.com

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