INTELLECTUAL PROPERTY IN FASHION INDUSTRY

A wonderful design can enjoy various exclusive rights created in many countries by the Intellectual Property Laws and fashion business can grow enormously through the global licensing. The fashion industries make huge investments to create new designs to attract customers but do not focus on protecting those designs as they are short lived. The companies involved in fashion and textile industry fail to understand the prospect of Intellectual Property Rights and its strength to create global market by licensing.

Registering the new and original designs under the Intellectual Property Rights is the only means to stop any kind of duplication or imitation.

Buying of a designer handbag is very thrilling or purchasing a creative dress is expensive affair. This happens due to brand value of that product or the popularity of the highly reputed designer. High fashion goods enjoy billion-dollar market andtherefore, the protection of brand through trade mark registration is very essential.

To create the monopolistic rights over the brand, the trade mark registration can be achieved if the brand name is unique and also distinctive.

Trademark Protection

Protection of trade mark is very essential to move ahead with any business involved in fashion world. The fashion industries grow only with thebrand value which is the result of huge investment. Registeredtrademarks can only protect the fashion goods as well as premium brands from any kind of imitation created by the unscrupulous business houses. Trademarkplays very important role for a small traders or startup company in the fashion industry.

Interestingly a fashion designer sometimes integrates a trademark to an extent that the mark becomes an element of the design or brand value. As a creativity,sometimes the designers exhibits a trademark (logodevice)on the outside of the garment or accessories. For example, a Louis Vuitton handbag exhibits well-known logo LV in a repetitive manner which is an integral part of the fashion for the handbag. As a result, the logo is part of the design and thus, trademark can provide significant protection against design imitation.Generally, the trademarks are either placed inside the garment or subtly displayed on small way over the buttons. Thus, most of the designed garments are not protected for the non-visibility of trademarks.

Fashion Designers can enjoy the right of monopoly over the distinctive features of a product by trade mark registration besides the logos or brand names. For example, the distinctive pocket stitching on the garments is a registered trade mark owned by Bettina Liano has registered the distinctive pocket stitching on her garments as a trade mark. Similarly,the British fashion house Burberry owns the trade mark rights over the expression Burberry and the distinctive checkdesigning. Burberry has registered

their unique trade marks in many countries and vigilant against counterfeiting its trade marks in many jurisdictions including USA.

As a source indicator, the trademark also covers the trade dress which generally known as product packaging. But in many occasions, the Apex Court or the Courts of Appeal has indicated the trade dress as an integral part of the design of a product. Some courts have decided to that extent the trade dress involves the total image of a product …such as size, shape, color or color combinations, texture, graphics or even particular sales techniques and thus it is protected by law under trademarks.

Copyright Protection

The Artistic works or innovations in a particular design can be protected by the Copyright Law. Copyright protection is granted for an artistic work, either published or not even presented before public. To secure the copyright protection, the artistic works should be presented as a drawing or representation on paper. No other medium or engineering work is accepted by the granting authority. When it is subject of protection an artistic work or the design of the garments,one can seek copyright protection under the Copyright Act, 1957 in India for a period of lifetime of the Artist and an additional 60 years after the life span of the respective artist. A copyright subsists inherently to the work of an Artist for the creative work.

Patent Protection

Designing industry does have any scope of enjoying the Patent rights unless there is any innovation related to method of manufacturing garments encompassing engineering process. Thus, the fashion designers can not enjoy the patent protection as the artistic works are not included therein.

But by introducing the technical innovation, the fashion business can grow enormously and is always ahead of competition. For example,an invention related to controlling body odor and body temperature for the garments, is patented in favour of Buck Weimer and CSIRO. Another example, patent was granted for a special kind of enzyme used in treating the fabric which has been produced byNovozymes ,a Danish biotech company, which was not previously known in the fashion industry, in the year 1987, the company brought a patented a technology for the treatment of stone washed denim jean materials. This technology is involved with an enzyme named cellulase, which removes some of the indigo dye from denim, the fabric for a worn look .Within the span of three years, most of the denim finishing companies started the method of using cellulase , being licensedby Novozymes. Today, Novozymeshas been created patent licenses worldwide for the technology for improving production methods and fabric finishing. The company holds more than 4,200 active patents and also several patent applications.

A Design related to fashion industry cannot be patented for the followingreasons:

A Patent always refers to an invention which should be:

  • New and Novel
  • Non-obvious
  • Capable of Industrial Application

To be novel, an invention should not be known by others anywhere in the world or patented in other country. The parameters for determining the non-obviousness, the invention should not be obvious to a person having ordinary skill in the art to which said subject matter relates to.Most of the apparel designing companies create the new fashion which does not qualify as novel or non-obvious enough to satisfy the statutory qualifications for patent right.

Industrial Design Protection

In the perspective of Industrial Design Protection , an article which is having the artistic features and attract the human eye, can be registered under the Design Act , 2000 and can enjoy exclusive rights by the fashion designer or the companies producing the designed articles .When an artisan seeks exclusive protection for his work then he should register it under the Design Act, 2000. To secure the registration under the Act, the design must be new and novel without any prior publication and the novelty of the design should be distinguishable feature. But an industrial process should be involved for developing such design on a product.

The Design Act, 2000 gives a monopoly right to the owner of the respective artistic work for a period of 10 years and it can be renewed further for another 5 years. Hence ,the Industrial Design Act and Copyright Act simultaneously provides protection for all kind of artistic works as well as the products uniquely designed by the industrial process.

Infringement of Registered Design

When any person or industry is involved in doing unlawful duplicating of any design by:

  • Producing similar design without any license for the owner
  • Importing similar without any legal authority
  • Publicly advertising the similar design

Section 22 of the Design Act recites that:

  • For the purpose of sale to apply or cause to be applied to any article in any class of articles in which the design is registered, the design or any fraudulent or obvious imitation thereof, except with the license or written consent of the registered proprietor, or to do anything with a view to enable the design to be so applied; or
  • To import for the purposes of sale, without the consent of the registered proprietor, any article belonging to the class in which the design has been registered, and having applied to it the design or any fraudulent or obvious imitation thereof; or
  • Knowing that the design or any fraudulent or obvious imitation thereof has been applied to any article in any class of articles in which the design is registered without the consent of the registered proprietor, to publish or expose or cause to be published or exposed for sale that article.

An infringement can be established by the following facts:

  • Violation of copyright in the created design.
  • The imitation of applied or registered design without any written consent or the license from the owner.
  • Adoption of design is for the purpose of commercial use.

Registered Design is protected by law from any kind of infringement and remedies are as follows:

Civil Court Remedies

  •  An injunction
  •  A compensation for damages

A suit can be instituted in a District court or a high Court depending on the quantum of damages claimed.

Criminal Court Remedies

No provision for criminal proceedings against piracy of design.

Protection under Geographical Indication

India’s traditional art in respect of various designed articles and textile goods are protected as Geographical Indication. Under the Geographical Indication Act, 1999 several textile goods from various regions are registered and also protected within India. For example Kanchipuram Silk from Tamil Nadu, Santiniketan Leather Goods and Baluchari Sareesfrom West Bengal ,Moradabad Metal Craft from Uttar Pradesh , Madhubani Paintings from Bihar and several indigenous artworks and textile goodsare protected under this Act. Several Indian Geographical Indications are protected in many foreign countries.