The Fashion Industry is an Intellectual property intensive industry as it is that industry that involves continuous creation of new and innovative ideas that are commercially exploited. If you just look at your reflection in the mirror, you will find that you are literally wearing “ Intellectual Property ”. The brand that you are wearing is most probably protected under trademark law, the floral design or any other like pattern on the dress is a design and can be protected under the Designs law and of course, any artistic work can be protected under the Copyright law (if, not protected under Designs law). Oh, let’s not forget, you can even license it to others and benefit out of it in terms of money and recognition. Like the music industry, the fashion business is rife with unauthorized copying. Logically, protection under design law for the Fashion Industry is most fitting.

Why Designs law?

On one side, Indian design industry is flourishing, while on the other side it is facing the menace of piracy. Hence, it is only apt that designs are protected as counterfeit products and knockoffs are sold more than the original product. More often than not, fashion designers are constantly complaining about unauthorised third parties imitation and copying. What can be done to prevent this? Simply get your design protected under the Designs Law. It is to be kept While the basic drawings and outlines can be protected under the law of copyright, if that pattern/shape is printed on an object like a piece of clothing or bag etc. it would fall under the realm of design law.

Protection under the Designs Act, 2000:

In one of my earlier posts on how to file a design application in India, I have mentioned the conditions that need to be satisfied for a design to fall under the definition of design under Section 2 (d) like it has to be original and must not have been disclosed to the public. Under the act (Section 2 (c)), a registered proprietor gets a copyright in the design which means the exclusive right to apply to any article in any class in which the design is registered. This means the act affords protection not in a particular article but against a class of articles. Some of the classes under which goods manufactured by fashion designers may fall under are:

Class 02 – Articles of clothing and Haberdashery (garments, headwear, footwear, socks etc.)

Class 03 – Travel goods, cases, parasols and personal belongings, not elsewhere specified (trunks, suitcases etc.)

Class 05 – Textile piece-goods, artificial and natural sheet material (textile fabrics, ribbons etc.)

Class 10: Clocks and watches and other measuring instruments, checking and signalling instruments (watches and wrist watches etc.)

Class 11 – Articles of adornment (jewellery etc.)

Fashion design piracy – what is it?

Simply put, it the unauthorised and illegal production or distribution of an original registered work. This is broadly categorised into a) knockoffs and b) counterfeits. Knockoffs are those products which are the exact replica of the original one but the brand name will be different (All of us know about “POMA”). Counterfeits are products which are the exact replica of the original which also retains the brand name of the original product. This is clearly done with the intention of deceiving the loyal purchasers of the original brand. So if any person commits any act involving piracy of a design, he is liable to pay up to INR 25,000.

Positives and negatives:

Licensing your registered design is one of the ways to climb the ladder to achieve success and well, richness. However, the biggest positive is that you have the exclusive right to restrict others from using your registered design and sue for damages when they infringe your rights.

On the other hand, the biggest downside is, is that there is very limited protection for an unregistered design. “It’s so outdated” is the phrase that the consumers start using once a particular design or a pattern has crossed its imaginary expiration date. Fashion industry is a place where there is constant flow of designs and patterns and what generally happens is that once the latest design is out in the market, the previous design that was ruling the mark becomes “outdated”. Unless the pattern or design is a standard one, like Louis Vitton’s famous “LV” design or Versace’s Medusa Motif, designers hesitate to file a design application.

Suggestions:

I feel that the term “Fashion design” should be clearly defined in the Designs Act, 2000 and also, protection of unregistered designs must be increase. This way, it acts as an encouragement for the designers to come up with new and innovative ideas with the assurance that their work will not be copied or imitated.

This article has been authored by Durga Bhatt, an IP Law practitioner.