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DIGITAL TWINNING IN GLOBAL FASHION INDUSTRY: MEASURES TO PROTECT DESIGNS FROM PIRACY PARADOX ON TREND CYCLES

  • sonalimukhia2002
  • Aug 2
  • 14 min read

Author: Muthu Sivaranjani M, Crescent School of Law, B.S. Abdur Rahman Crescent Institute of Science and Technology, Vandalur


ABSTRACT

A fast growing, extremely dynamic and all-time talk of all the towns in the world is the “fashion industry” which blooms with its own set of consuming publics at large following trend cycles and patterns which keep their portraits to the external world to be admirable. With the passage of time, digitalization entered its sprint to support its reach to all look and corners with economic sustainability amongst which “digital twinning” served to be a modern adoption replacing the old school stereo of using natural models with expensive outdoor shoots, boosting the financial stability and being a savior of time. However, these digital twins fell a prey to the piracy paradoxes which were a parasite to the fashion houses in spuriously infringing their fashion designs just for the sake of making hot sales banking up on the consumer bases of the original brands and to stay on the trend cycles.

In this paper, this issue is analyzed and compared with the current scenarios relevant in India by - (i) observation of various legislative frameworks protecting the Intellectual Property Rights of the fashion houses especially their unique designs from piracy paradoxes; (ii) identification of the gaps with measures to bridge the same; and (iii) elucidation of various relevant cases setting samples in overcoming the crisis. Thereby, the study reveals a solution to one of the less spoken digital IP infringements and strengthens the pathway to protecting empires built on fashion brands.


Keywords: fashion industry, digital twinning, piracy paradox, trend cycles, intellectual property frameworks in India, measures to overcome

INTRODUCTION

A global enterprise worth multi-billion dollars, involving businesses encompassing designing, manufacturing, distributing, marketing, retailing, advertising, and promoting all types of apparel right from daily wear to the high sewing is the “fashion industry”. Its growth is dynamic and massive by being a multinational trade with a way of clothing designed in a country, manufactured in another country, and sold in a third country. For instance, a French fashion company might source fabric in India and have the clothes manufactured in Italy, finished in Canada, and shipped to warehouses in UAE for distribution to retail outlets internationally.

With the due course of time, digitalization expedited its efforts to expand its influence over all the possible areas with economic sustainability, wherein “digital twinning” emerged as a contemporary alternative to the traditional fashion industry techniques involving expensive outdoor shoots with models, and conserving time. Nevertheless, these digital twins fell a prey to the piracy paradoxes that infected through the fashion houses, wrongfully infringing upon their designs merely for the sake of dishonest banking of goodwill, reputation, hard-earned consumer base and deceptively keeping up with the trend cycles. Thus, the research uncovers a resolution to one of the unsung digital IP violations and bolsters the means to safeguard empires established on fashion labels.


LITERATURE REVIEW

This study exclusively deals with the piracy paradox as an ethical concern against the fast growing and sustainable technological implementation of digital twinning in the fashion industry which is studied with its genesis, compared with the ethical issues in India, addressed with the available protective statutory frameworks and discussed in detail with case laws suggesting for a design right by way of a dedicated law compiling necessary frameworks from other international intellectual property laws.

Whereas, the existing researches and scholarly works have broad range of doctrinal materials associated with digital twinning, design piracy and fashion intellectual property all as separate and uncombined studies revealing various dimensions of approaching the concepts as an individual issue. Therefore, this study unveils a combined ideology without any fragmentation, revealing a suggestive solution to protect fashion houses, designers and their design vide intellectual property rights.


HYPOTHESIS AND METHODOLOGY

The hypothesis of this study revolves around this issue and compares it with current situations in India to find out “whether any measures exist to overcome the piracy paradoxes in ‘digital twinning’ in the trend cycles of the global fashion industry?”  by doctrinal research methods of - (i) reviewing different legal frameworks safeguarding the Intellectual Property Rights of fashion brands, particularly their distinctive designs from piracy challenges; (ii) pinpointing the deficiencies and suggesting solutions to address them; and (iii) explaining several pertinent cases that provide examples of overcoming the crisis.


DIGITALIZATION IN GLOBAL FASHION INDUSTRY

The fast growing technology and its advancements, slowly started to influence the fashion industry leaving no stones unturned in the arena of fashion designing, and this emergence of digital designing tools gradually started to boost the economic stability of the relevant sector by minimizing the manpower cost invested by the fashion houses and also ensured to reduce designing material wastes. Few of the prominent usage of digital tools in fashion designing are provided as below;

Digital Sketching & Ideation: Before a piece of clothing is actually produced, designers envision their ideas. vision,

3D Prototyping & Virtual Fitting: These tools replicate actual fabric physics, enabling designers to drape clothing on digital avatars, assess fits, and produce virtual prototypes without using any real fabric,

Textile & Pattern Design: These tools are designed specifically for creating custom surface prints and performing technical pattern grading, and

Presentation & Portfolio Management, etc.


ADOPTION OF DIGITAL TWINNING IN DESIGNS

Among the innovations transforming the industry are digital twins, which serve as virtual copies of physical systems and products utilized to enhance and oversee their real-world equivalents. Digital twins are presently employed across numerous sectors to perform tasks, and especially in the fashion industry, it facilitates the designers, manufacturers, and retailers to model the complete lifecycle of a fashion product including garments, jewelries, accessories, etc. right from conception to disposal fully in a digital setting, that encompasses their fashion designs, materials used, and type of production. 

A key significance of employing digital twins in the fashion industry is because of its ability to minimize waste and maximize the production process, thereby, fashion designers and manufacturers can evaluate materials, manufacturing techniques, and pricing strategies by developing a digital twin of a garment before committing to the final physical production. 

These digital twins can likewise be shifted to the virtual arenas of various meta verses, enhancing the worth of fashion companies’ virtual assets and transform these digital twins into access credentials for a brand’s personalized loyalty program which helps in engaging the customers with an experience having a deeper connection to the brand and its values, along with a sense of familiarity to a community of similar individuals.

Further, various fashion brands have started implementing digital twin technology in multiple ways. For example, Adidas started to produce digital versions of its shoes and clothing to test their product’s commercial performance in various conditions and settings, which allows the brand to modify its designs well in advance to production, improving the quality and longevity of products. 

Similarly, the American denim brand Levi’s adopted digital twin technology to improve the fit and quality of its jeans, with the development of digital models of its clients’ bodies to design customized jeans that enables improved fit and enhanced comfort. Moreover, it helps to mimic the appearance and texture of its jeans post multiple washes, guaranteeing their quality is upheld for a long lasting time. 

Also, a British luxury fashion label, Burberry has cleverly used the digital twin technology to improve its customer experience of its shops and items, enabling them to browse its ranges and customize their own products in an interactive online setting, which helped the said brand to recreate various in-store designs and visual merchandising setups, improving its physical retail ambit.


PIRACY PARADOX ON TREND CYCLES

A multi-beneficial technology of digital twinning with all the aforementioned glories has a common yet ethical threat inbuilt as they allow malicious individuals to exploit AI for quick counterfeiting and illegal marketing by tracking the digital passports for authenticity verification and fashion design piracy involves the illegal copying of original clothing and accessories with deceptive similarity by mass-market or fast-fashion companies. Therefore, safeguarding original designs internationally is particularly challenging and significantly depends on the jurisdiction. 

Further, digital twinning piracy leads to the illegal replication, reverse engineering, or forgery of a digital twin’s exclusive algorithms, structural data, and virtual properties. It creates a significant harm to business trade secrets and the allied intellectual property, often by acting as an easy route for corporate espionage leading to the following consequences;

Algorithmic Theft: AI equipment and three dimensional design platforms (such as CLO3D) are efficiently utilized to surf the web, identify trendy clothing styles, and rapidly produce geometrical patterns to replicate them.;

File Leakage and Espionage: files containing the digital twin details with the exact geometry, fabric coding information, and measurements, are vulnerable to leaks, hacking, or unauthorized cyber sharing in the due course of supply chain between brands and manufacturers.;

Fabric Simulation: accurate physical characteristics once transformed into a digital twin, international manufacturers can create identical physical replicas much faster than usual reverse-engineering methods permit.;

AI-Generated Listings: malicious individuals often use AI to alter images of authentic clothing, converting and inserting them into online listings for imitation items that redirect to black websites.;

Digital Rights Ambiguity: determination of the actual owner of an intellectual property for a digital asset may be unclear and independent brands frequently engage three dimensional designers to develop digital twins, which in the lack of a clear license agreement, the digital twin may turn into a disputed or risky asset.; and

IP Vacuum: the intellectual property laws of fashion differ worldwide, where implementing copyright on functional apparel is highly challenging, since clothing usually falls out of the regular copyright safeguards unless it features a “pure art.”.


ANALYSIS IN INDIA

Indian fashion and e-commerce leaders employ digital twins to create virtual models of clothing and consumer body metrics, aiming to decrease textile waste, cut down return rates, and facilitate customized sizing, wherein fashion retailers like Myntra utilize three dimensional sampling to assist customers in envisioning outfits prior to buying. Though it has achieved considerable commercial success, the fashion industry encounters a significant issue with respect to design protection at this juncture incurred by the digital twinning technologies. 

Further, independent Indian fashion designers, who always operate with constrained funds, seasonal lines, and minimal legal resources, frequently encounter the replication of their designs by fast growing fashion retailers, mass brands, and unregistered manufacturers. It should be considered that, in contrast to major fashion brands, they do not have the resources to sustain these losses, and re-constructing a distinctive design can result in losing a full season’s investment.


IP FRAMEWORKS IN FORCE

The legal framework intended to safeguard fashion designs is primarily derived from three statutes as elucidated below;


STATUTORY PROTECTION UNDER THE COPYRIGHT ACT OF 1957

The Copyright Act 1957 protects the original artistic creations of fashion designers from the time they are made, without needing registration, and as a drawing or sketch, like an original pattern or embroidery motif, can be interpreted as an artistic work  in accordance with Section 2(c) of the Act. At times, a piece of garment such as clothing might require copyright protection as a “work of artistic craftsmanship,” even though Indian courts tend to be hesitant to test this classification to mass-produced apparels. 

A further constraint is the division between idea and expression as copyright safeguards only the particular expression of a design, not the fundamental concept, style, or trend. Therefore, in illustrative terms, a designer can safeguard a unique geometric block-print design but cannot stop others from creating geometric block prints overall and in an industry influenced by trends, this highly restrains the applicable range of copyright protection.


STATUTORY PROTECTION UNDER THE TRADE MARKS ACT OF 1999

The Trade Marks Act 1999 protects registered trademarks, such as shape marks and unique design features that serve as source identifiers in fashion industry. However, to register a fashion design as a trademark, one must furnish evidence of acquired distinctiveness, indicating that consumers connect the likelihood of association of the design directly to the designer’s brand and do not perceive it merely as visually appealing. It is challenging for new or emerging designers to achieve this standard as it typically mandates years of steady commercial usage and significant commercial brand awareness. 

Coming to the action of passing off under common law, applicable in India via the Trade Marks Act 1999 and civil courts, it offers a remedy when a defendant misrepresents their goods as belonging to the plaintiff, damaging the plaintiff’s goodwill. In fashion, this is relevant when an infringer asserts that its fashion designs replicated by digital twins are created by or associated with the original designer. However, passing off cannot be applied in a market where fast-fashion brands replicate designs disproving the likelihood of causing confusion or association.


STATUTORY PROTECTION UNDER THE DESIGNS ACT OF 2000

The Designs Act 2000 offers the strongest and most apt protection for fashion designs in India; however, its procedural demands have considerable practical challenges. According to Section 5 of the Act, a design should be registered before it is released or utilized in commerce and this mandate for prior registration contradicts with the practices of the fashion industry. It is to be noted that fashion designers customarily showcase their collections at fashion weeks, trade shows, and media previews, which are considered “prior publication.”, and consequently, complicating prior registration requirements mandated by the enactment. 

However, the Act does not cover surface decoration on flat textile fabric, which is a significant drawback for the Indian fashion sector, even though woven, printed, and embroidered two dimensional patterns are key distinctive design features.


TESTIMONIES AND FASHION HOUSE CASES

In Microfibers Inc v Girdhar & Co, the Hon’ble High Court of Judicature at Delhi examined the scope of Section 15 of the Copyright Act 1957 related to artistic designs on fabric, which upheld in its detailed ruling that,  “Section 15 operates as a limiting provision, copyright for a design registered under the Designs Act 2000 lasts only until the design has been applied industrially more than fifty times”.

The court also stated that, “a two-dimensional artistic work, such as a design printed on flat fabric, is disqualified from registration under the Act as Section 2(d) specifies that the design must be attached to an “article,” and plain textile fabric does not meet the requirements”. 

This decision is significant for independent fashion designers as it shows that two-dimensional fabric designs cannot be registered under the Designs Act and introduces uncertainty of three-dimensional apparel designs, leading to the identification of ambiguity in the existing framework under the said Act.

In Ritika Private Limited v Biba Apparels Private Limited, the Hon’ble High Court of Judicature at Delhi decidee a case of passing off and copyright violation brought by the firm behind the fashion brand Ritu Kumar, against Biba Apparels, in which a temporary injunction stopping Biba from selling clothing with the purportedly copied designs was issued, upholding that, “it is a prima facie case of copyright violation regarding the original artistic works of the designs and had demonstrated the likelihood of irreparable damage to its commercial reputation”.

The court also stated that, “original artistic creations by a fashion designer, including design sketches, embroidery charts, and print layouts, are eligible for copyright protection despite the fact that the completed garments might not meet the criteria”. 

This decision is significant as it enables designers to ground their assertions in the creative pieces that inspire the design instead of solely on the clothing, addressing certain problems associated with “useful articles.” and demonstrates that passing off can act as an added solution for brands with recognized goodwill, even though it provides little scope to new or emerging designers.

In Rajesh Masrani v Tahiliani Design Pvt Ltd, the Hon’ble High Court of Judicature at Delhi denied the request for an interim injunction, indicating that the plaintiff had failed to adequately demonstrate the originality of the designs. The court enforced a strict standard and emphasized that, “originality demands more than mere novelty; it must demonstrate genuine creative authorship”. 

The court also observed that, “embroidery designs influenced by traditional patterns do not inherently qualify for copyright protection unless the designer can distinctly demonstrate original creativity that goes beyond the traditional origin”.

This decision is significant for two reasons, as it firstly indicates that, copyright defense in fashion design is not inherent; designers need to distinctly demonstrate originality, and creations that significantly depend on established traditional or artisanal styles might not satisfy that condition; and secondly, highlights a long running conflict between copyright law and India’s abundant craft heritage. Therefore, this prompts a significant policy inquiry regarding whether intellectual property laws, which were initially created for industrial creative endeavors are appropriate for protecting fashion designs that are deeply tied to the communal artistic customs.


BRIDGING THE GAPS TO DESIGN PROTECTION

It is hereby, unveiled that fashion is not a passing trend; rather it is a legacy that can be inherited from the past to the present and continue into the future. The use of digital twin technology in creative sectors like fashion industry consequently builds a wider legal and policy concerns that are to be addressed at the highest levels. Thus, the obstacles include not only our current situation, but also the future possibilities, such as the incorporation of AI technologies that will further introduce new challenges. This discussion indicates that, the present legal frameworks are fraented, often subject to varying interpretations by courts, and frequently disadvantages independent creators while benefiting those with the means to malafidely register designs and engage in prolonged infringement disputes. 

Initially, the copyright protection is most robust for designs that fail commercially and least effective for those that gain popularity because when a design appears on over fifty items, copyright protection ceases. Further, the instant a design reaches significant commercial success, the said protection vanishes like a bubble, which contradicts the intent of intellectual property law. 

Nextly, the pre-registration obligation outlined for protecting designs contradicts with the practical operations of the fashion industry where fashion designs are showcased with prior publication. In this regard, one of the potential solutions may be a grace period provision similar to that in the European Union’s Community Design Regulation, which provides the fashion designers a one year (12 months) time frame from the initial public disclosure to register their designs while maintaining novelty, thereby, enhancing the accessibility of registered design protection for fashion designers. 

Finally, the varying judicial interpretations have resulted in considerable legal ambiguity, where designers and their legal counsel frequently struggle to foresee if a design will uphold copyright protection or be governed by the Designs Act, complicating both the legal planning and enforcement, therefore, a precise legislative explanation of the scope and functioning of the statutory intellectual property protection is consequently well overdue.

Through the analysis it is revealed that, India’s system is less favorable than the European Union’s, which offers three years of automatic unregistered community design protection from the initial disclosure, encompassing the overall look of a product without requiring formalities. Therefore, establishment of a comparable automatic short-term unregistered design right in Indian legislation that includes both three-dimensional clothing shapes and two-dimensional surface designs, and that originates automatically from the initial disclosure of a design would provide independent designers with a significantly more practical and accessible initial layer of protection.


CONCLUSION

The doctrinal study, therefore unveiled the practical possibilities of ethical risks allied with the extensive use of digital twinning in fashion designing and the analytical discussion of leading cases highlighting piracy paradox of designs merely for the sake of survival in the trend cycles established the growing need for a design right with adoption of a statute with provisions of similar legislative frameworks existing in the world, in protecting, preserving and promoting a designer’s intellectual property rights tied with their trending creations creating revolutionary impact in tailoring a statutorily safeguarded sustainable fashion industry.


REFERENCES

JOURNAL ARTICLES

  • Keyon Lo, Stop Glorifying Fashion Piracy: It is Time to Enact the Innovative Design Protection Act, 21 Chi.-Kent J. Intell. Prop. 159 (2021).


CASE LAWS

  • Rajesh Masrani v. Tahiliani Design Pvt. Ltd., AIR 2009 Del. 44.

  • Ritika Private Ltd. v. Biba Apparels Pvt. Ltd., 2016 SCC OnLine Del. 503.


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