Abstract

With the fast-fashion industry on the rise, it's harder to secure unique plans in the design world. In this paper, we explore the intersection between intellectual property (IP) law and the design industry, focusing on the effectiveness of existing laws in protecting designers from impersonation. Since fast-fashion brands are frequently accused of copying high-end designs, IP protections have been questioned. Basically, this research explores whether existing IP laws give adequate protection for design plans and investigates possible changes or elective methodologies to make them more effective. An integrated approach is used, including a comprehensive writing survey, an examination of key legal frameworks, and an analysis of striking case studies where architects have sought legal solutions to fast-fashion substances. Such gaps are not addressed by copyright, trademark and design patents; with respect to fast fashion in particular. This is in part because the fast-paced industry can move quicker than existing laws, which cannot always be effective for preventing or addressing infringements. The paper ultimately finds that existing protections for IP are inadequate to entirely safeguard fashion designs in such a fast-paced market. 

Keywords

Intellectual Property, Fashion Industry, Fast Fashion, Design Protection, Copyright, Trademark, Design Patents.

Introduction

The various forms of protection for the fashion industry that fall under the Intellectual Property (IP) are product form, product design, product label, brand name, symbols, emblems, logos and trademark. Registered designs refer to the shape, pattern or texture of goods that can be protected for up to ten years for two or three-dimensional products, fabric patterning or bag shaping among others and after this period, the design becomes common property. Patents include logos, brand names and packaging and others are meant to identify a specific trader’s products or services and this lasts indefinitely so long as renewal charges of every ten years are made. Industrial designs pertain to the rights of exclusive use of various inventions for a period of 20 from date of filing of the application. Copyright protects artistic works such as graphic art, literature and other products in media for sixty years after the death of the author though it is covered for only twenty-five years if the design is used commercially as is common in fashion design. Unfortunately, fast fashion copyright faces certain challenges such as the issue of the design infringement. It has also raised controversies through copying originality and individuality of independent and recognized fashion houses without adequate permission or remunerations to the fashion brands. This approach does not respect the investment and time that the original founders have put into the business and as well discourages innovation. Some of the instances that fast fashion brands have imitated unique symbols associated with luxury fashion brands range from logo and brand association. This could lead to confusion among consumers and would be very disadvantageous for the original brand’s image together with its exclusivity factor. Fast fashion in its demand for cheap products does not hesitate to exploit workers and provide dangerous working environments and conditions in less developed countries; design theft is therefore not the only problem. Of course, these unethical practices are not related to the issues of copyright, but they must be discussed discussing the impact of the given industry. Every so often, fast-fashion firms knowingly develop products whose copies mimic the trademarks and logos of other premium businesses. These are illegal fakes that might cut a face to the real brand in the market thus denying it good sales.

Literature review

Analysing the position of fashion design in the world of intellectual property one can state that it is disregarded. Being a creative industry, it requires a lot of creativity and innovation, but it only receives a small percentage of intellectual property rights as are offered to other creative industries such as the music and visual arts industries. Fashion has evolved its concepts regarding IP laws. Today, problems related to clothes have shifted to the international level, thanks to WTO and WIPO. Due to this, countries are rediscussing the relationship between fashion and law.

The concept of imitation is not new and applies not only to the extent of fast fashion. That being said, the vast size and low cost at which Quick copies can be produced. When used together – progressively lowering import limits and reducing production costs. with the help of electronic correspondence and fast delivery to ensure that the finished garments can be quickly introduced to the market – this has made it possible for thousands of relatively cheap copies to be made. All in all, the product was developed within six weeks or even less. 

As the trademark, copyright, and patent law offers protection for intellectual property, there exists significant evidence indicating that fashion design requires better and more protection than is offered by these laws. There exists controversy in regard to the protection of the Intellectual property in the fashion industry. The proposed protections are as follows and some professionals recommend avoiding them because they are bad for the sector while others are in favour of their implementation as long as they adhere to current power and energy legislation.

Legal framework

In terms of fashion, exclusive fashion creators opt to employ trademark, copyright, and design patents to protect their non-functional artifacts. More specifically, items such as “works of authorship fixed in any tangible medium of expression” fall under the protection of the Copyright Act as extension of intellectual property. the issue whether a fashion piece is eligible for the copyright protection depends on what part of the work exceeds the threshold. Facts and ideas which cannot be given any form cannot be copyrighted, as well as a work which is a copy of another work or was created using a template. Copyright therefore does not protect items of utilitarian design even where they are novel and incorporated in a permanent manner on an article. The fashion industry has a number of protection modes at its disposal that have not greatly changed since at least the Fashion Originator’s Guild of 1932 irrespective of the efforts of various corporations. This was done in the view to ensure that brands vie for a few types of protection available under the current laws of trademark, copyright as well as patents. In India, a host of rules regulating the intellectual property rights of the brands and the designers reign the fashion industry and not just one. The two laws that regulate the intellectual property rights in the Indian fashion industry are the Designs Act of 2000 and the Indian Copyright Act of 1957.

DESIGN ACT 2000

the 2000 Design Act The main purpose of the act is to provide protection and safeguard designs which are used in specific products, which are prepared through industrial techniques. An industrial design is the element of the commercial/aesthetic feature of a product or article that attracts consumer attention. It is essential for enhancing the economic value of a product, which, in return, raises its market value, and potential customers. Section 2(d) of Design Act 2000 defines what is meant by design as follows: It includes “any article whether in two dimensional or in three dimensional or in both by any industrial process or means whether manual mechanical or chemical separate or a combination which in the finished article appeal or are judged solely by the eye; it does not include any mode or principle of construction or anything which in substance is a mere mechanical device.”

THE TRADEMARKS ACT, 1999

Trademark protection is also available within formal laws namely The Trademark Act, 1999 and the common law passing off remedies systems of India. The protection of this kind is under the Act administered by the Controller General of Patents, Designs, and Trademarks. Regarding the Trademark protection Registration and prevention of fraudulent trademark usage the Trademark Act of 1999 was enacted. In addition, it addresses the following matters: rights of the trademark holders, sanctions, remedies for the affected parties and trademark transfers. Trademark is defined in the Trademark Act, 1999 as, “trademark means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include the shape of goods, their packaging and combination of colours.” Such a mark may include numerous things such as signatures, names, labels, headings etc. features of a product that are ‘generally' cannot function as a trademark, the typical functionality classification assigned to clothing design has hindered its ability to secure protection for trademarks. Instead, the patent system can protect functional elements. Sometimes, brands can fall back on trade dress—a kind of trademark law— for design defence if they are unable to generally use Trademark Law beyond the protection of their brand name(s), symbol(s) or identifying marks. under trade dress definition has put it: "the design of the overall image used to present a product and thereby identify that the product with its source, e. g., size, shape colour graphics packaging label etc. A perspective on a product notes that trade dress "provides protection for the entire work rather than mere identifiable, separate elements of a piece."

THE INDIAN COPYRIGHT ACT, 1957

The legal right to protect creations is known as copyright. Cinematographic films and sound recordings as well as writers, dramatists, musicians and other artistic works are protected by copyright. In reality, a copyright is a bundle of rights which includes the right of public communication, reproduction, adaptation and translation of the work. Although the details of these rights may vary somewhat from work to work but are similar in principle. Copyright promotes and rewards creativity by affording authors a minimum degree of protection for their works. Innovation is the source of progress and no civilized society can afford to ignore the importance of fostering it. The economic and social progress of a nation depends on how innovative it is. Copyright protects authors, philosopher’s writers artists designers dramatists musicians architects publishers sound recording producers filmmakers and computer software programmers which creates conducive climate encouraging them to create more as well as enjoy fruits of succeeding creations. The landmark case Star Athletica, LLC v. Varsity Brands, Inc was in the fashion designers’ favour. the extent to which they are apt to protect the artistic designs they afford to wear on their attires. However there are some drawbacks of the copyright law as the Copyright Act shields fabric drawings with fashion design, but that does not include  dress designs.

Impact of fast fashion

These are the reasons why fashion has meaning in a society and has purpose in people’s lives. This is the case of people with different realities and different rapport with reality such as the mentally ill. their clothes. One can define new standards for herself/himself, but to decide that all other stockholders should adhere to a certain set of rules is adventurous. The following account has been prepared on this basis without this being taken into consideration. It’s a move like this which appears that is currently unthinkable to be happening in the fashion circuit. Now, everything is for the sake of sustainability. Sustainability is not an unfamiliar word in the fashion industry but it was considered as a mere Luxurious preference and associated with a kind of traditional handwork look. All these changed when they learnt of other arrogant and shocking evils across the supply chain being taken to the ultimate consumer and various industries in various segments began to assess their effects on the environment. Based on such rapid progress that fashion has made over the decades, it comes as no surprise that its industry is unsustainable. Nevertheless, this move to correct all the industry’s deficits could have missed out on an important issue to look into. Fast Fashion has arrived at a segment of society that could never get a chance to access fashion in the way that they, the privileged, did. But it has brought some horrible disasters in this type of business model in the industry. But sometimes his condemnation and the alternatives presented as solutions could perhaps be an even bigger problem.

The term sustainability is not unfamiliar to the fashion industry, nevertheless, it was in the past considered as an option or added as an ornament, and frequently linked to a craft or country style. This all changed however, when the final consumer was educated about the evils that existed throughout the supply chain and companies from various sectors started assessing their environmental footprint. At the pace through which fashion has been produced in the last few decades, the industry indeed could not be sustainable, however, in a bid to compensate the harm done, there could be one important aspect that is not given attention to. The constant fashion has enabled the world to enjoy the fashions that could not be possibly experienced in the following decades. Fast fashion made contact with a segment of the population that was somehow never truly given a taste of fashion like some other people were. However, as is usual with any good thing in life, what the system had in store was something that saw the country headed for terrible industrial disasters. On certain aspects regarding this business model, it is hard to argue that the model is perfect. However, the alternatives presented in the answers and the criticism of it could be a greater problem.

Newsworthy reports notwithstanding, some of the customers’ favorite business models, such as the Fast Fashion, prove that consumers never tire the industry, although it is one of the most complex industries in terms of its business models. Fast-fashion is defined by affordable prices that are the result of high production rates, poor quality of materials applied, cheap manpower and frequent replacement of collections instead of four annual collections that were customary before. Fast fashion spread from being a business model to a behaviour that can be described as consumerism. Therefore, it should not be a surprise that businesses preserving the fast fashion principles faced pressure as the need of building a more sustainable fashion industry evolved. It is also important to point out that other famous brands from the processing industry also contributed to this new consumer behaviour and often rented warehouses with semi-legal and fast fashion brands, but the latter took the heat from this campaign of villainization because the culprits were clearly identified. While it can be said that it is very far from sustainable and requires major changes, Fast Fashion are, in many ways, the only way for people who have no other opportunity to experience fashion. It was the first to extend its hand towards a part of the population that never had the means of paying for an alternative. It raised the query of whether the fashion Industry is really taking these people into consideration when designing on the sustainable practices in the process being adopted.

Case law

The two principal legal foundations under which the protection of Intellectual Property Rights is provided in India is the Indian Copyright Act, 1957 and the Designs Act, 2000. While the Copyright Act mainly shields ideas that have been embodied in books, arts, music and films among others, the Designs Act safeguards the outer appearance or motifs of products such as shapes, patterns or ornaments among others. The relationship between these two legislations are the most relevant in fashion, textile and product design where aesthetics as well as functionality of a design is of importance. This section will review leading case laws on the issues relating to the overlap of copyright and design, the ban on the double protection and the relief available to the owner of protected work. By way of these cases, a thematic analysis of development of IPRs in Indian context is made to understand the legal issues faced by the creators and industries.

The Delhi High Court ruled in the Wimco Ltd. v. Meena Match Industries case that publication of a design refers to its availability to the public and that publication might occur through two different channels: the previous document, or the previous user for that matter. For it not to be considered as publication, the design can be used in private as well as for the purposes of testing.

In Ritika Private Limited v. Biba Apparels Private Limited, Ritika whose case is the first sought an order restraining Biba from making prints for its clothing which resembled creations owned by the applicant. The Court held that the Plaintiff could not look for protection for designs which have been produced fifty times and more under the copyright statute since it only protects designs that have been produced up to fifty times and hence the complaint under section 15(2) of the Copyright statute, 1957.

The main controversy in relation to Christian Louboutin and Yves Saint Laurent before the United States Court of Appeals for the Second Circuit was whether Louboutin can trademark Fundamental Red colour on shoe soles. Louboutin, a company well famous for it’s brand respondents with red soles, maintained that the red sole constitutes as a source identifier of Louboutin luxury shoes. In production, Yves Saint Laurent came up with a collection of monochromatic shoes- a feature that included red soles associated with red uppers thus leading to the trademark infringement case. 

Hence, the court dealt with the functionality of the red sole and concluded that they had allowed the red sole to serve as a trademark but the sole in question belonging to Louboutin was also functional making its protection limited. In appeal, the Second Circuit affirmed the Louboutin’s trademark, but limited it to shoes that are red with contrasting colour uppers thus permitting Yves Saint Laurent to sell shoes with red colour on a red background. Finally the decision provided the right degree of protection for Louboutin's trademark for a trademark holder against unfair competition or market competition respectively.

Using authority from cases such as Dodge v. Ford, Schlensky v. Wrigley and Revlon, Inc. v. Forbes Holdings to argue the proposition that the legitimate function of business is indeed to maximise shareholder wealth, such practices hurt other important stakeholder that determine a firm’s future beyond short term profits for instance, the communities in which the businesses are located, employees, and natural environment In contrast to such a rather myopic view of corporations, several other scholars have convincingly demonstrated that the ‘shaky foundation’ of the shareholder maximization model and others have pointed out that the case law cited in support of the shareholder value theory that is often cited in the prevailing literature is not as unequivocally supportive as has been painted ;In fact,no corporate statutes or legal decisions require companies to strictly follow the shareholder maximization model. Further, it is preposterous to contend that firms serve culture in the most optimal way by aggressively narrowing the focus down to the self-interest of the business entities.

Discussion

Several fashion designers within the globe believe in making extra effort in their work thus creating new and unique pieces. The two main evils that negatively influence the fashion business are plagiarism and piracy; any time that a new, hotter design or product hits the market or production line, dozens of fakes and duplicates will not be far behind. By protecting creators' work which is unique and original, there is the need for intellectual property rights. Counterfeiting lowers the value and credibility of these products and reduces the quality hence negatively impacting the profitability of the fashion designers, brands, and the industry at large. As an outcome, to guarantee that nobody copies their work, or replicates it with the purpose of vandalism or counterfeiting the fashion designers/artists have to register their work, or design with the legislations relating to the field.

Conclusion

Fashion designers do strive to come up with all new and uniqueness in fashion designing for the fashion industry. The threats that overshadow the fashion business are plagiarism and piracy; as soon as people hear or see a new, hot piece of clothing or an accessory, dozens of plagiarism and fakes will appear. For this reason, the exclusive rights known as Intellectual Property Rights are pivotal, so that the artists compose unique masterpieces. In this case, the value, credibility and quality of the products are reduced via fakes hence reducing the profitability of fashion designers & brands and the fashion industry at large. Thus, fashion designers and artists have no other choice but to register their work and attractive patterns as well as other exclusive details of their production under the legal acts. Some emerging fashion designers and fashion businesses are at a disadvantage since they lack knowledge of their rights and hardly or do not register their products despite many laws protecting the intellectual property rights of designers or producers. They need to be informed on their rights with a view of safeguarding their works and products against imitation and counterfeiting. Designers also opt to not register their creations more so because the process of registration is complex and time consuming. The guidelines on how to register designs should be made easier and designers and creators who go to the registration offices should be assisted by the staff. Indian fashion laws can be said to have various shortcomings which are being discussed below. In the case of Ritika Pvt. Ltd. v. Biba Apparels Pvt, Ltd., one such loophole was as follows: Plagiarism was not given protection under the copyright laws despite her material having been copied more than fifty times. Some degree of copying should be allowed under Copyright, as it is at present; a higher threshold than at present should be allowed for reproduction.

AUTHOR:

DILPREET KAUR

CPJ College of Higher Studies and School of Law