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Fashion Industry & IP Protection

Posted on: April 26, 2018

Since fashion is not just restricted to apparel but also extends to luxury goods, better standards of living in the country have meant a greater demand for the luxury goods. But, Intellectual Property Rights (IPR) has been a burning issue in this sector. Fashion designers have frequently complained about their designs being copied without their permission.

A Textile Designs are also considered as a form of art which is an inception of mind and soul of an Artist. A “fashion design” is defined as the appearance as a whole of an article of apparel, including its ornamentation. The term “apparel” is defined to include men’s, women’s, or children’s clothing including outerwear, gloves, footwear, handbags, purses, tote bags, belts & eye- glass frames. When an artisan spends enormous amount of time and energy in putting a design into an outfit in the textile industry, it is the duty of the owner of such precious works to protect his right legally so that no one can copy and take a readymade benefit for such work.

Design copying is widely accepted, occasionally complained about, but more often celebrated as “homage” rather than attacked as “piracy”. Why are the norms about copying in the fashion industry seemingly so different from those in other creative industries like in the film, music, software and publishing industries? And why, when other major content industries have obtained (and made use of) increasingly powerful IP protections for their products, does fashion design remain mostly unprotected?

Trademark Protection

Trademarks help to maintain a prestige premium for particular brands, and can be quite valuable. Big fashion houses value their brand equity. Most develop a bond with their customers through their brand names and fiercely protect these through registration of trademarks and protection of associated artwork by copyright law. Trademarks are just as important for a small or start-up company in the fashion industry.

Many fashion goods sold by street vendors are counterfeits that plainly infringe trademarks. Occasionally a fashion design will visibly integrate a trademark to an extent that the mark becomes an element of the design. But for the vast majority of apparel goods, the trademarks are either inside the garment or subtly displayed on small portions such as buttons. Thus for most garments, trademarks do not block design copying.

In addition to protection of source-defining marks, trademark law also protects “trade dress,” a concept originally limited to a product’s packaging, but which, as the Supreme Court has noted, “has been expanded by many courts of appeals to encompass the design of a product.” Some courts have gone so far as to hold that trad  e dress involves the total image of a product such as size, shape, colour or colour combinations, texture, graphics or even particular sales techniques.”

Trade Marks Designers can use trade mark law to protect not only logos and brand names, but also other distinct features of a product. For example, Bettina Liano has registered the distinctive pocket stitching on her garments as a trade mark, while British fashion house Burberry holds trade mark rights in both the trade mark “Burberry” and the Burberry check pattern. Burberry has enforced its trade marks in many jurisdictions against counterfeits including a recent action in the US District Court.

Copyright protection for Artistic innovations

An artist is entitled to protect artistic work under copyright law. Copyright protection is granted to an artistic work even if the work is already published and has been already in use. The protection under copyright is only limited to the drawing and any such representation in paper. There is no engineering work attached to it. When it comes to protect a work or design for textile industry one can seek copyright protection under the Copyright Act, 1957 in India for a period of lifetime of the art.

Patent protection 

Patents may not immediately spring to mind when considering the fashion industry. Artistic creations cannot be patented and therefore patents are not widely adopted by designers. Yet technical innovation can equally put a fashion business ahead of the competition. For example , inventions by Buck Weimer which control odour in garments have been successfully patented. Another example, can be Novozymes, a Danish biotech company specializing in enzymes and microorganism, pioneered the use of enzymes in the treatment of fabrics. Though not previously involved in the fashion industry, in 1987 the company developed and patented a technology for the treatment of “stone washed” denim jeans. This technology is based on an enzyme called cellulase, which removes some of the indigo dye from denim so as to give the fabric a worn look .Within three years, most of the denim finishing industry was using cellulase under license from Novozymes. Today, Novozymes’ technology for improving production methods and fabric finishing has been licensed worldwide. The company holds more than 4,200 active patents and patent applications.

Protection under Industrial Design Act

When an artisan seeks exclusive protection for his work then he should register it under the Design Act, 2000. But the criteria to register a work under the Design Act, 2000 is that the work must be new without any prior publication and the novelty of the artist must be reflect from the design to get its registration. In case an employee is attached to the creation of a design during his course of employment, the employer can only apply for the registration of such design. The Design Act, 2000 gives a monopoly right to the owner of the artistic work for a period of 10 years and he/she can further extend it for a period of 5 years. Hence ,the Industrial Design Act and Copyright Act provides an umbrella for protection for all the artistic conceptions .

 

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