Intellectual Property Right gives the exclusive right to the owner over his/her product which is made through their intellect. Such a right excludes any other person from trading on the same product. As far as the fashion industry is concerned, owners resort to various kinds of intellectual property rights in order to protect their product.
This is a special legislation promulgated by the Indian Parliament to provide protection to designs. The Act has included any shape, color, configuration, pattern or ornament under the definition of ‘Design’. It can either be two dimensional or three dimensional and can be applied through any process including manual or through machine. However, the design must be unique, novel and appeal to the eye. In one case, the design of a water dispenser in the shape of a cylinder was not granted protection because it was held not to be novel. A design can be registered under this Act for 15 years. The proprietor could be the author of the design, anyone who has been assigned by the author or someone who has acquired the design after paying a consideration to the author. It is important to note that whenever an application for a design is made, the proprietor gets copyright in design for 10 years from the date of registration.
A designer can also rely on the Copyright Act to protect its designs. The US Supreme Court in Star Athletica vs Varsity Brands had held that a two-dimensional design could be granted copyright protection. However, the design must have aesthetic elements to get the protection. Similarly, the court went on to hold that graphic designs made on a sheet of a paper can also be granted copyright protection. Moreover, if a design is not registered under this Act then it will continue to enjoy the copyright protection so long it is not applied on an article based up on industrial process for more than 50 times. Thus, in Ritika Private Limited vs Biba Apparels Private Limited, petitioner’s copyright infringement case was dismissed by the Delhi High Court because the 50 times threshold was met by the petitioner. However, one has to remember that, unlike the Designs Act, Copyright is a natural right and protection is granted when the design is created. Hence, registration is not mandatory as long as the person could show that he is the original owner of the design.
Designers of the fashion industry can also rely on the Trademark Act to protect its designs. Under the definition of ‘mark’ in Section 2m of the Act, shape of goods, packaging and combination of colors have been included. In Gorbatschow Vodka vs John Distillieries, plaintiff’s Vodka bottle was granted trademark protection by the Bombay High Court because the shape of the bottle was unique. However, the European Court of Justice in Philips vs Remington had held that when the shape forms an essential characteristics for performing a technical function of the product itself, then trademark protection cannot be given. Hence, the 3 headed electric rotary shaver was not given trademark protection. As far as the color is concerned, only a combination of colors which has acquired distinctiveness could be granted trademark protection. Thus, in the Cadbury Case, the purple color on the wrappers was granted trademark protection because it has acquired distinctiveness.
Thus, the fashion industry can rely on these laws for IP protection. However, in order to get these protections, the designs must be unique and original.
