Fashion law is a broad concept that encompasses a variety of legal issues such as contract law, arbitration, labor law, intellectual property law, and so on. It is concerned with issues of privacy, consumer preferences, and rampant consumerism. The word "fashion" has evolved in today's fast-paced society with technological advancements; it has become a commonly accepted standard to identify an individual based on how they dress, extending to the quality of ‘brands’. As once said, ‘dress for the job you want, clearly establishes the importance of ideal apparel. Fashion, in the 21st century, is not just restricted to apparel is extended to nanotech, e-commerce, custom-fit clothing, innovative fabrics, wearable technology like smartwatches, Fitbit, smart clothing, etc.
Fashion is one of the factors in social and interpersonal relationships, as it stimulates and affects cultural understanding. Thus, there is a requirement for regulating it.
However, there is no such concept of trade dress in India one cannot protect the whole garment or the wearable technology; one needs to bifurcate it, pick a particular element and then protect it as copyright. Wearable Technology is the new normal,
but with its widespread adoption comes a great deal of responsibility. Because it collects so much data, it's important to keep track of it. When developing a ‘trend,' one must consider Invention Rights, Data Rights, and Product Rights in order to have complete control over it.
Civil remedies available in brand or/and product counterfeiting are:
Damages or Compensation
Fashion is an art form, and as such, it is dependent on the designers' imagination and ideas. Exclusivity is a tactic used by any brand and company in this market to cater to a snobbish class of people, setting them apart from the competition. The greater the attractiveness of a brand, the greater the market for the product and hence the financial benefits. Not only does this act of copying or counterfeiting endanger the life of multi-national fashion brands in India, but it also endangers the economy.
The Indian fashion industry has been exploding with better and novel inventions and works of art, while the Indian legal system's IP eco-system is becoming more systemic and proliferated in terms of broadening its awareness of newer challenges in the form of intellectual property security. Given the broad scope of the fashion industry, which includes everything from international trade, business and finance, modeling, textiles, cosmetics, clothing, and even footwear, this multifaceted area of work needs careful consideration in order to thrive.
Intellectual Property Law and Fashion Law:
Intellectual property has been justified throughout history through the Lockean idea of natural rights; Hegel's individual ownership of property, an incentive for innovation, and utilitarian theory. One of the most influential and well-known justifications, the utilitarian principle, based its rationale on maximizing the profit of the greatest number of people by enacting legislation, establishing legislative processes, and enacting laws that would maximize the satisfaction of the greatest number of people in the society. It is based on the delimitation and restriction of property in order to encourage creativity and production as a means of societal growth.
Intellectual property's cultural value has demonstrated a number of different standards across cultures. Clothes, fashion, and beauty are only a few of the many factors that differentiate cultures around the world. Intellectual Property Rights (IPR) are a person's rights to their intellectual creations, which include things like painting, literature, and inventions. Any novel invention is the monopoly of the person who owns it, and the person who owns it has the right to benefit from it. Copyright exists for writing and sculpture, a patent exists for inventions, and a trademark exists for brand names. Intellectual Property encompasses Trademark, Copyright, Patent, Design. As we know, IPR extends to Fashion Law as well, since, the fashion industry consists of designing, manufacturing, and dealing in new and unique designs with clothes or accessories or jewelry. These designs are the fruits of somebody's intellectual work and should therefore be protected by the IPR.
In order to protect designs applied on clothes in the fashion industry, the Indian legislature has enacted The Designs Act in the year 2000.
Legal argument and jurisprudence continue to question the rationale behind intellectual property, especially in cases where the IPR aims at expanding or changing the scope to address and embrace an aspect of human innovation or creation.
The fashion industry is a constantly rising and changing industry that is unlikely to decline. As a result, tougher laws are expected for fair play to continue in this industry. The danger of copying and counterfeiting not only results in financial losses but also discourages designers from creating something fresh and creative. Piracy is the death of creation, so its abolition is of paramount importance. As a result, the current status of Fashion Law demonstrates the significance of intellectual property law in the fashion industry, as well as its impact in this globalized era.
History of Fashion Law:
Fashion law is a field of law that covers the different intellectual property rights segments, including copyright, patent, trademarks, trade designs, and so on. Susan Scafidi, the United States law professor for the first time, in the year 2008, offered a course in fashion law and after that, this subject of fashion law has been recognized as a distinct field in the sphere of law. Fashion law is a rapidly growing area with the advancement of emerging technology, despite being a highly concentrated specialization.
In the 17th century, fashion was an integral part of the French way of life. Fabrics in less expensive versions have also been circulated as part of the trend. In the year 1920, when fashion was easier to copy and more available, the changes were made. In the field of fashion, copying remained the most serious issue. The origins of copyright extensions can be traced back to the English and French Copyright systems, which cover fashion designs.
Laws protecting and regulating ‘Fashion’ in India:
Following are the Fashion Foundations in India:
Fashion Foundation of India (FFI)
Fashion Design Council of India (FDCI)
Apparels Export Promotion Council (APEC)
Fashion law assistance ranges from the inception of an idea to formulate or design a garment to having it stitched into clothing fabrics, styling and publishing it, and receiving brand protection for it.
Fashion Law encompasses:
Business, Finance, Commercial Laws
Counterfeiting and Fashion Law litigation
Antitrust and Competition Law
The Fashion Foundation of India (FFI), which is comprised of leading Indian designers, aims to defend intellectual property rights from widespread duplication, referencing, and inspiration.
The Design Act of 2000, the Copyright Act of 1957, and the Geographical Indications of Goods Act of 1999 all provide protection under India's intellectual property regime. As a result, three different pieces of legislation appear to govern the apparel and design industry. The 1957 Copyright Act protects the works of art in the idea illustrations. The Design Act of 2000 protects the non-functional aspects of a visually appealing entity, such as the shape, pattern, line structure, and color sequence. The Design Rules, 2001's third schedule contains an exhaustive list of products and items for which the regulator may request an application. This design right will be in force for ten years, with the option to extend it for a total of 15 years if the other requirements are met.
Labor law, such as India's Factories Act, 1948, regulates the manufacturing process; corporate law governs marketing and other company-related issues for a fashion company, and banking law oversees loans and other financial transactions. E-commerce has encouraged sales in the fashion industry since the advent of the internet, laws relating to information technology and e-commerce are also important in the field of fashion.
Furthermore, the COVID-19 pandemic has weakened consumer purchasing power, which has the potential to fuel the knockoffs industry and other types of copies of luxury designer designs. Because of advances in the fashion industry, such as virtual reality shows, multimedia photoshoots, and influencer-driven commercials, infringers' liability must be fixed and measured by adequate remedy mechanisms.
Issues revolving around the existing protection offered for ‘Fashion Law’:
The Designs Act of 2000 provides protection to registered designs, and anyone who contends to be the owner of a new or unique design can apply to have it registered. Design registration and copyright over an article cannot coincide, according to the Copyright Act,1957. The fashion industry's players are not fully covered by either the Copyright Act or the Designs Act. The Copyright Act safeguards the original expression of an 'individual artist', while the Designs Act safeguards the design's industrial implementation.
(Ritika Private Limited vs. BIBA Apparels Private Limited)
There may be some doubt pertaining as to whether a fashion design or one applied to a fabric or jewelry, should be covered by the Copyright Act or the Designs Act. Furthermore, fashion designers usually want to bring their design under the Copyright Act because it grants a 60-year monopoly on an artistic product, while the Designs Act only grants a 10-year monopoly. In Ritika Private Limited vs. BIBA Apparels Private Limited, the Delhi High Court put an end to the dispute.
In this landmark case in the fashion industry, the brand RITU KUMAR tried to shield its designs under the brand name by copyright, charging that some of their former employees had gone to work for the well-known brand BIBA. The defendant argued that, under Section 15 (2) of The Copyright Act, 1957, if a design is registered under The Designs Act, it is not subject to copyright, and if a design is not registered under The Designs Act but is ‘competent of being registered,' then once copyright in a design is applied to an article by an industrial process for more than 50 times, ownership of the copyright ceases.
As a result, the Court had to decide if a design that is included under the Copyright Act is liable to be covered by it, or if, under S.15 (2) of the Act, if it is "capable of being licensed" under the Designs Act, it would not be protected by the Act after 50 applications. The suit was dismissed on the grounds that the designs fell under the concerned Section of the Copyright Act because the term "capable of being registered" is included in the Act.
At first glance, recent developments in the fashion industry have drawn attention from an academic standpoint. As time passes and society's needs evolve, various jurists and scholars identify fashion law as one of the relevant bodies that create intellectual property rights as the sole protector of fashion designs. Fashion designers must be mindful of the various levels of confidentiality afforded to various articles and fashion trends. Designers need a system to protect their designs both before and after they are publicly disclosed in order to avoid counterfeits from entering into the market, undermining the designer's price and creating a downward bending slope in popularity for designer apparel. This lays the groundwork for granting intellectual property rights in the fashion industry. Fashion houses or individual designers spend large sums to create, acquire, and benefit from a monopoly right with this opportunity in mind. A brief history of fashion design in ‘fashion progressive' countries like France shows that illicit use and violation by fashion houses has caused concern among designers, despite designers overlooking and turning a blind eye to illegal actions by tiny replicators. The industry's innate tendency is to turn a blind eye and a deaf ear to acts of misappropriation. Clothing and attire's social and cultural role has shifted dramatically. Regardless of the numerous laws in place, the fashion industry appears to be plagued by piracy. The fashion industry is built on a foundation of inspiration, referencing, and homage. The conventional copyright regime's restrictive and restricted monopoly, as well as the term granted, would have the effect of suffocating and limiting the free distribution and dissemination of fashion trends, which is an important feature of the fashion industry.
Authored by: Anushka Rao
College: VSLLS, VIPS