The fashion industry in India is ever-growing and thriving. The industry enjoys a close nexus with the agricultural industry depending on it for raw materials making the Indian fashion sector unique in comparison to other industries in the country. The Indian textile industry is estimated at around 108 billion dollars and is expected to reach 223 billion dollars by 2021. The Indian Textile Industry contributes approximately 5 percent to India’s gross domestic product (GDP), and 14 per cent to the overall Index of Industrial Production (IIP).[1] The industry is driven mainly by domestic designers (which have managed to also carve out a niche internationally) but in the past few decades, there has been an influx of international brands into the Indian market. From Manish Malhotra, and Sabyasachi, to Armani, Louis Vuitton, Dior, and Givenchy, the Indian markets are now home to the premier, luxury brands. Even brands like Burberry, Prada GAS, have ventured into India with Tiffany Jewellery being one of the latest members. There are also slightly less “luxurious” brands like Nike, Puma, Calvin Klien, Supreme, Super Dry, etc that have become strong, active participants of the Indian market.
However, more often than not these products are out of the reach of many, yet the desire to own them has increased. This has resulted in a thriving multibillion-dollar industry being marred with the nuisance of piracy and counterfeited products. But what is Piracy? Piracy can be understood as “[t]he unauthorized and illegal reproduction or distribution of materials protected by copyright, patent, or trademark law”[2]. Fashion piracy in the context of the fashion industry can be understood as the piracy in fashion design & the piracy in logo/label of fashion brand. Fashion design piracy essentially involves the unauthorized copying of original fashion designs and can be in the form of either knockoff or counterfeit. So from top quality knockoffs to extremely cheap knockoffs (guci, clvin klin, brulberry, adidas) the markets are flooded with pirated products. This is not a problem that is indigenous to the Indian market. From California where there have been instances of cheap knockoffs of makeup products being sold (such as the “Kylie Jenner Lip Kit”) to Hong Kong and Bangkok which have entire markets dedicated to knock-off products, the problem of pirated products is everywhere.
However, there is still an ongoing debate over the need for protection of fashion design. Critics of protection for innovation argue that the industry is thriving and the need for protection is unnecessary and the absence of IPR protection encourages fashion designers to innovate new designs by taking inspiration and not getting confined, which ultimately leads to the growth of the industry. On the other hand, proponents argue that designs are difficult to create and conceptualize but copying these is cutting of costs and is cheap. If there doesn’t exist a strong IPR protection regime, then it would impact new innovations and designs. In short, copying stifles innovation and they claim that IPR protection for fashion designs would encourage greater innovation by ensuring that the profits from a design went to the designer and not to those who merely copied the work.[3]
The EU has been slightly more proactive in protecting the rights of the designers and innovators using various protection laws which are strictly implemented. In order to minimize the effect of fashion piracy in the EU (especially France and UK, both leading fashions hubs) has implemented several laws which make it easier to register designs where the designer has to apply for a Registered Community Design (RCD) at the Office of Harmonization in the Internal Market (OHIM) at Alicante in Spain. This enables the designer to get protection for a period of five years, which can be extended, to a period of 25 years in all the countries of EU.[4] This directive, which has turned out to be the saver for many existing and upcoming designs, has its roots in the French Copyright Act of 1793, which considered fashion designs to be a form of ‘Applied Art’.[5] If a person is found liable for infringement then the person is not only civilly but also criminally liable.
The US is still struggling to enact stringent fashion design laws. The most recent attempt was with the Innovative Design Protection Act of 2012 which allows an extension for copyright for 3 years on fashion design. The conditions being that the result should be from the designers’ own creativity and should also be unique, distinguishable, non-trivial and non-utilitarian variation over prior designs for similar types of articles. As per the cases and recent judgments under American law, the act has not proven effective and only time will tell if it will be improved in the future.[6]
The Indian experience is slightly different with no specific action to deal with fashion piracy. However, the fashion industry is offered protection by Indian laws under three different legislations – copyright protection for fashion design under the Indian Copyright Act of 1957, protection of Trademark under the Trademarks Act of 1999 and protection of Industrial design under the Design Act of 2000.
The Design Act provides the most comprehensive protection for the fashion industry. Section 2(d)[7] of the Act lays down the definition of design and only protects those items that meet the criteria for qualifying as design. Which are –
1) It must be new or original.
2) It must not have been disclosed to the public anywhere in India or in any other country by publication in tangible form or by use or in any other way prior to the date of filing for registration.
3) It must be significantly distinguishable from known designs or a combination of known designs.
4) It must not comprise or contain scandalous or obscene matter.[8]
The major criticism against the Act is that it does not protect the entire garment in its entirety but only individual units of the garment such as the pattern, colour or shape etc. Also to further complicate the matter, the specified units must meet the definition of ‘design’ and they must also be registered to ensure protection under the act. As per the provisions of the Designs Act, copyright in the registered design subsists for a period of ten years from the date of registration[9] and maybe extended further for the second period of five years on an application regarding the same.[10] Section 22 of the act goes on to list the constituents of piracy for this act and tries to lay down a penalty for those found guilty for piracy. But this is not enough since there is no provision for the protection of unregistered designs and they are left out of the ambit of protection.
However the process of design registration is complicated, time consuming and registering them is no longer commercially viable when they go out of season. Thus there exists no protection for designers in the short term. Also while the act attempts to incorporate provisions for recovery of damages from any person involved in the act of piracy of registered design there is a limit on the amount of money that can be recovered (i.e. not exceeding fifty thousand rupees) which also discourages designers from seeking protection.
We also have Copyright protection as a legal protection model employed by fashion designers to protect their creative works. Fashion design is better protected as an “artistic work” under the Copyright Act of 1957 then as a “design” under the Designs Act, 2000. And because For this reason, fashion designers in India usually prefer to term their designs as artistic works which give them better for protection for a longer duration of time. Some designers attempt to protect their brand by using trademarks. Trademarks help to maintain a prestige premium for particular brands and can be quite valuable to apparel and accessory firms. The utility of trademark law, however, in protecting fashion designs, as distinct from fashion brands, is quite limited.[11]
To ensure that there is the development of the industry and the intellectual property of designers is protected, it is very important to control piracy in India. To regulate fashion piracy and limit it, the structure followed should be two fold; Firstly, traceability of the product has to be enhanced and furthermore, the laws in the country have to be amended to match the needs of the industry. The traceability can be heightened only if the designs are duly registered. This procedure will bring all the designs under a protective umbrella of law and it will become easier to trace the miscreants who indulge in these practices to hinder the growth of the industry. In order to ensure and promote the registration of designs, the process must be simplified and shortened. Since the commercial viability of a product is limited and the complex registration procedure destroys the entire point of offering protection.
The need of the hour is for the law to be made stronger and in favor of the designers under provisions of Designs Act, 2000 and the Copyright Act, 1957. The conflict between the two must be resolved. To eliminate this, ambiguity has to be removed and amendments related to registration will bring in more clarity on the issue of protection of fashion designs as intellectual property. It is also important for the laws to address the compensation awarded in cases of violation of intellectual property that actually covers the damages incurred by the designer. Further, it is also important to come up with a more comprehensive definition of fashion design in order to remove all ambiguity and come up with protection even for unregistered designs.
The Indian fashion industry is a significant part of the Indian economy and its role is only going to increase in the future. The only way the industry can thrive is if there is continuous innovation. In order to ensure that, it is vital to ensure protection of the intellectual property of designers and fashion houses. There are multiple lacunae in the current regime, affecting both big and small designers. There is a need to improvise the current intellectual property regime in India so as to make it more favorable to protect fashion design from piracy. So that there is an impetus to continuously improvise and innovate without any fear and India continues on its journey to overtake as the leading fashion industry in the world.
Also Read – The Concept of Originality in IPR- Through the Works of Duchamp and Dali in Mona-Lisa
[1] India (2019). Textile Industry in India: Overview, Market Size, Exports, Growth…| IBEF. [online] Ibef.org. Available at: https://www.ibef.org/archives/detail/b3ZlcnZpZXcmMzcxMTAmMTEy [Accessed 10 Oct. 2019].
[2] Black’s Law Dictionary (Ninth Edition, 2009), p. 1266.
[3] The threat to innovation posed to fashion industry by unregulated fashion design copying on a large scale, C. Scott Hemphill & Jeannie Suk (2009), note 19.
[4] Article 10, Directive 98/71/EC of the European Parliament and of the Council of 13 October 1998 on the legal protection of designs.
[5] Tedmond Wong To Copy or Not to Copy, That is the Question: The Game Theory Approach to Protecting Fashion Designs, 160 U. Pa. L. Rev. 1139 (2012).
[6] Intellectual Property Rights Protection of Fashion Design in India: A Panoramic View By Shishir Tiwari Electronic copy available at: http://ssrn.com/abstract=2805346
[7] Section 2(d): design” means only the features of shape, configuration, pattern, ornament or composition of lines or colours applied to any article whether in two dimensional or three dimensional or in both forms, by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye; but does not include any mode or principle of construction or anything which is in substance a mere mechanical device, and does not include any trade mark as defined in clause (v) of sub-section (1) of section 2 of the Trade and Merchandise Marks Act, 1958 (43 of 1958) or property mark as defined in section 479 of the Indian Penal Code (45 of 1860) or any artistic work as defined in clause (c) of section 2 of the Copyright Act, 1957 (14 of 1957);
[8] Section 4, Design Act 1999.
[9] Section 11 (1), Design Act 1999
[10] Section 11 (2), Design Act 1999
[11] Kal Raustiala and Christopher Sprigman (2006), note 19, p. 1701.
This article is authored by Manasvi Tewari and Sakshi Dhapodkar (Lawyers)
