Fresh, modern designs are at the core of fashion. Each season, the fashion industry spends enormous sums of money on developing fresh and innovative designs. Branding is important because fashion companies spend a lot of time and money on their brand’s appeal. Despite this substantial investment, there is little registration and protection of these designs under applicable national and/or regional design regulations and more counterfeits. The act of registering a design enables the owner to stop third parties from using its novel or distinctive ornamental or aesthetic features, which may pertain to a two-dimensional textile or a three-dimensional characteristic such as the shape of a hat. It is crucial for the fashion brand to protect its design, pattern, or any other kind of intellectual property against theft, imitation, or any other fraudulent attempt to create knockoffs/counterfeits from the company’s valuable design by using the garment or its design with malafide intention. Indian Designers such as Ritu Kumar, Rahul bal , JJ Valya have succeeded in protecting their fashion designs from time to time.
Fashion designers rely on following intellectual property laws to safeguard their creations.
- TRADEMARK
Most likely, trademark law has the most influence on fashion. When creating clothing and accessory designs, there is a growing trend among fashion designers to include a registered mark on the exterior of the product. Given that the logo now functions as a component of the design, trademarks offer strong protection against imitations of designs. Furthermore, the Trademarks Act of 1999’s protection of trademarks extends to brand names as a whole. According to Section 2(zb) of the act, “trademark” means a mark that is capable of distinguishing the goods or services of one person from another person and may include the shape of goods, their packaging, and combination of colors.
Christian Louboutin v. Yves Saint Laurent. This case is regarded as a landmark since it clarifies the topic of trademarking color. French fashion designer Christian Louboutin has registered trademarks in the US and numerous other nations. The trademarking of the color was approved by the court. As a result, Christian Louboutin has trademarked the red color that is associated with the shoe, making it easy to distinguish between the two. This is more accurately described as a trademark that meets stringent standards.
However, On March 11, 2022, the Tokyo District Court dismissed Christian Louboutin’s allegations that the defendant’s red-soled shoes infringe their intellectual property rights and subject them to damages under the Unfair Competition Prevention Law. The court stated that the color red is frequently used on shoes to improve the aesthetic appearance and attract customers. Even before the launch of Louboutin shoes in Japan, ladies’ heels with red soles were widely available. Given that Louboutin’s shoes are known for their expensive, high-heeled heels that cost at least JPY80,000, pertinent customers would be careful to choose and buy the right products. Given that the stylized “Louboutin” wordmark is also present on the soles of the defendant’s shoes, it is unlikely that relevant consumers will associate the defendant’s footwear with Louboutin.
- PATENT
Design patents and utility patents can be useful in the fashion industry. Useful designs that have been patented are things such as zippers, Velcro, astronaut suits, and Kevlar. However, historically, the fashion industry has not typically pursued design patents because they are frequently prohibitively expensive and not worthwhile effort. This is especially true because fashion trends frequently vary from year to year, making it unnecessary to obtain a patent unless the design will be used repeatedly every year. Some items that have received design patent protection include a Jimmy Choo “Twist” shoe design, as well as a Valentino tote bag from its “Rockstud” line.
An illustration of a utility patent is “Improvement in securing pocket-openings” by Levi Strauss. This patent made riveted pockets fasten more securely. Uniqlo’s Heat Tech textiles, which incorporate technology with new uses, are another illustration of a successful utility patent that covers new functionality for clothing.
When considering the fashion industry, patents may not be the first thing that comes to mind. However, technological innovation can also put a fashion company ahead of the competition. Novozymes, a Danish biotech company specializing in enzymes and microorganisms, was the first to use enzymes in fabric treatment. Despite having no prior experience in the fashion industry, the company developed and patented a technology for the treatment of “stone washed” denim jeans in 1987. This technology is based on cellulase, an enzyme that removes some of the indigo dye from denim to give it a worn appearance. Within three years, Novozymes’— cellulase had been licensed to the majority of the denim finishing industry.
- COPYRIGHTS
Original literary or artistic work is protected by a type of law known as copyright. It does not contain any physically useful items. The clothes item itself is regarded as functional and cannot be protected by copyright but the clothing item’s design can be protected. Jewelry is another exception to the general rule of fashion. Since jewelry is more akin to sculptures or other works of art, which are protected by copyright, it is not seen as useful.
In the Rajesh Masrani v. Tahliani Design case, the plaintiff claimed that under Section 2(i)(c) of the Copyright Act, 1957, the drawings it created while designing clothing and accessories qualified as artistic works. Both the finished garment designs and the patterns printed and stitched on the fabric were claimed to be artistic creations. Additionally, the plaintiff claimed that these numerous artistic works’ copyrights had been violated, and a single judge granted the plaintiff’s request for an interim injunction. Thus, to protect his/her creations under the Copyright Act, 1957, a Fashion designer needs to prove
- That his/her creation is an original artistic workwithin the meaning of the Copyright Act, 1957 and is not a design within the meaning of the Designs Act, 2000; and
- 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.
Caselaw
Sabyasachi Calcutta LLP Versus Mr. Ankit Keyal Proprietor Asiana Couture & Ors – In a lawsuit brought by the plaintiff, the High Court of Delhi in New Delhi recently issued a ruling addressing the infringement of the plaintiff’s designs. The case’s central argument concerned the novelty and piracy of the designs of dresses. The plaintiff is a Limited Liability Partnership company run by renowned fashion designer Mr. Sabyasachi Mukherjee, who claims to have a sizable presence in the Indian fashion market and a well-known international brand. Following the Court’s hearing on the subject, it was determined that the defendants’ dress designs appear to be an evident replica of Plaintiff’s design and an attempt to associate their goods with those of Plaintiff. Additionally, the defendants’ social media pages are being used to advertise these designs, and there is evidence of that on file. As a result, the Court issued an order directing that the defendants be restrained in accordance with the Plaintiff’s application until the next hearing date of January 24, 2022.
Conclusion
It is always highly recommended to invest early in order to lay the groundwork for securing intellectual property rights, as public recognition and association of the design with the designer or Fashion Company is crucial. Fashion designers must also educate themselves about intellectual property protection and determine the best type of protection for their products.
Bibliography
- https://ipbulletin.in/sabyasachi-calcutta-llp-versus-mr-ankit-keyal-proprietor-asiana-couture-ors/
- https://www.wipo.int/wipo_magazine/en/2005/03/article_0009.html
- https://www.legalserviceindia.com/legal/article-3317-fashion-and-intellectual-property.html
- https://blog.ipleaders.in/fashion-industry-challenges-ip-protection/
- https://michelsonip.com/fashion-and-intellectual-property/
- https://www.legalserviceindia.com/legal/article-2025-fashion-law-and-its-scope-with-reference-to-important-case-laws.html
