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Do not Copy My Puffy White Shirt: Intellectual Property Rights and Fashion Industry

Intellectual property law is not one category of law; it is an umbrella category for protection of embodied ideas, or intangible property. Copyright is for, in general, literary or artistic work; patent is for inventions. Trademark is about the symbol that may indicate a company. Copyright and patent are all about incentivizing innovation and protecting new things; trademark is about signs and symbols that indicate a company. Each of these things has very special implications in fashion.

Versace’s medusa motif, the Vera Wang wedding dress, Louis Vuitton handbag, Louboutin red sole heels – all these are products of applied intellectual creativity and skill in the fashion industry. No one doubts the tremendous value of intellectual capital to the creation and marketing of products in the fashion industry, be it high fashion or ready-to-wear. Yet many small and medium-sized enterprises pay little attention, if any, to protecting such intellectual assets. In the current business environment, the primary source of competitive advantage for all businesses, including those in the fashion industry, is innovation and original creative expressions.
The Indian fashion market is growing better than ever. With the growing Fashion Weeks, fashion designers have frequently complained about their designs being copied without their permission. Such so-called piracy must be stopped as it is plaguing the growth of this industry. Since the current copyright statute doesn’t offer protection to fashion designs, courts interpretation on copyright law have consistently declined to extend protection to clothing because its utilitarian uses outweigh the ornamental features.

The article focuses on the different Intellectual Property Protections available for the fashion business.

Copyright And Fashion Items

What is Copyright?

Copyright is the right to copy. Copyright refers to the legal right of the owner of intellectual property. This means that the original creator of a product and anyone he gives authorization to are the only ones with the exclusive right to reproduce the work. Copyright law gives creators of original material, the exclusive right to further develop them for a given amount of time, at which point the copyrighted item becomes public domain.
When someone creates a product that is viewed as original and that required significant mental activity to create, this product becomes intellectual property that must be protected from unauthorized duplication. Examples of unique creations include computer software, art, poetry, graphic designs, musical lyrics and compositions, novels, film, original architectural designs, website content, etc. However, a copyright does not protect ideas, discoveries, concepts, and theories.

One safeguard that can be used to protect an original creation is copyright. Anyone with an original work of authorship automatically has the copyright to that work, preventing anyone else from using or replicating it. The copyright can be registered voluntarily by the original owner if he or she would like to get an upper hand in the legal system if the need arises.
Under Indian Law, Indian Copyright Act, 1957 defines, regulates and governs the scope of copyright protection.

Duration for which copyright exists

In India, copyright protection, under the Copyright Act, 1957 exists for a period of lifetime of the artist and an additional 60 years after he passes away. In the US, an original owner is protected by copyright laws all his life until 70 years after his death. Copyright protection varies from country to country, and can stand for 50 to 100 years after the individual’s death, depending on the country.

Copyright and Fashion Industry


Kieselstein-Cord v. Accessories by Pearls, Inc

., the court determined whether a belt buckle, serving a utilitarian function designed to fasten belts and hold up articles of clothing, could receive copyright protection? The district court held that the “pictorial, graphic, or sculptural features” couldn’t be identified separately from the utilitarian aspects. On appeal, the court stated, “this case is on the razor’s edge of copyright law” as it was testing the fine boundaries. The appellate court reversed the district court’s holding because the “sculptured designs cast in precious metals-decorative in nature and used as jewellery”, were separate enough to be protected. To clarify further, when an element of the clothing is taken off, it should be able to independently meet the requirements for copyright protection.

Similarly, Jewellery is not functional; jewellery is merely decorative. It doesn't cover your body. It doesn't keep you warm. Therefore, jewellery gets copyright protection; in large part because jewellery is a lot like miniature sculptures, and sculptures are art, and therefore, art is copyrightable.

Patent And Fashion Innovations

Patent and Design Patent

Patent, is a legal document granted by the government giving an inventor the exclusive right to make, use, and sell an invention for a specified number of years. Patents are also available for significant improvements on previously invented items.

Usually patents mean for a utility patent. This separates the category of design patent, which got attention after the big Apple-Samsung controversy. Design patents are still functional items, but they protect the ornamental or decorative aspect of functional items. If you have a shoe that has an interesting moulded or sculptural heel that doesn't have any particular special function, but is part of this otherwise functional item, the shoe might have design patent possibility. Nike is one of the top 10 design holders of U.S. design patents.

Under Indian Law, when an artisan seeks exclusive protection for his work then he should register it under the Design Act, 2000. To qualify for a design patent, the invention must meet three basic tests. First, the invention shall not previously exist, it must be novel. Secondly, the invention must be non-obvious, which means that the invention must be a significant improvement to existing technology. Simple changes to previously known devices do not comprise a patentable invention. Thirdly, the proposed invention must be useful, thus, it shall not be used for an illegal or immoral purpose. In case an employee is attached to the creation of a design during his course of employment, the employer can only apply for the registration of such design. When the reproduction of an original artistic work is conducted by employing an industrial process, which resulted in a finished article and possessed appeal to the eye then the industrial process constitutes a “design”, within the purview of the Designs Act.

Duration for which Patent exists

The Designs Act 2000 is so drafted to permit protection of non-functional aspects of an object, having visual appeal, such that design that include the features of shape configuration, pattern, ornament or composition of lines or colours applied to nay two dimensional or three dimensional or on both forms. The third schedule to the Design Rules 2001 provides an exhaustive list of products & articles in respect of which an application may be made to the controller.

The Design Act, 2000 gives a monopoly right to the owner of the artistic work for a period of 10 years and he can further extend it for a period of 5 years.

Design Patent and Fashion Industry

Patent have always looked at fashion and said, "Eh? A shirt is a shirt. A bag is a bag. It all looks alike to us." It's been historically pretty tough to get patent protection for fashion industry.Yet technical innovation in fashion industry can equally put a fashion business ahead to get a patent.While fashion trends may come and go in the blink of an eye, some never pass. Many items become classical pieces. There is a one year waiting period at the French fashion house Hermès for the classic “Kelly” Bag, which grew to fame in 1956 after Princess Grace Kelly of Monaco, appeared carrying the bag on the cover of LIFE Magazine. Many fashion houses strive to create such classic design pieces. When they succeed, if they have not obtained the appropriate design protection in time, imitators will be able to ‘free ride’ on their creative work. However, in 20thCentury developments can be seen to get a design patent for particular garments, underwear, dresses, handbags, shoes. Handbags, with hardware on a handbag that is particularly sculptural or decorative can get a design patent. Moreover, Alexander Wang, for example, has a number of design patents. Inventions by Buck Weimer and CSIRO which control odour and body temperature respectively in garments have been successfully patented.
Novozymes, a Danish biotech company specializing in enzymes and microorganism, pioneered the use of enzymes in the treatment of fabrics. Though the company was previously not involved in the fashion industry, in 1987 the company developed and patented a technology for the treatment of “stone washed” denim jeans. This technology is based on an enzyme called cellulase, which removes some of the indigo dye from denim so as to give the fabric a worn look. Within three years, most of the denim finishing industry was using cellulase under license from Novozymes. Today, Novozymes’ technology for improving production methods and fabric finishing has been licensed worldwide. The company holds more than 4,200 active patents.

The Italian company Grindi Srl. invented Suberis, an innovative fabric made of cork, which was said to be as smooth as velvet, light as silk, washable, unscratchable, stain-resistant, waterproof and fireproof. The Suberis fabric is used in the manufacture of clothing, footwear and sportswear, as well as in many other applications. Grindi filed an international patent application in 1998 to protect its unique product in a large number of countries.

Trademark And Fashion Houses

What is Trademark?

A trademark is any word, name, symbol, or design, or any combination thereof, used in commerce to identify and distinguish the goods of one manufacturer or seller from those of another and to indicate the source of the goods. Trademarks are generally words, phrases, logos and symbols used by producers to identify their goods. However, shapes, sounds, fragrances and colours may also be registered as trademarks.

Indian law statutorily protects trademarks as per the Trademark Act, 1999. Section 2 (zb) of the Trademarks Act, 1999, defines Trademark as "trade mark 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 shape of goods, their packaging and combination of colours." According to Section 2 (m) a mark can include a device, brand, heading, label, ticket, name, signature, word, letter, numerical, shape of goods, packaging or combination of colours or any such combinations.

Trademarks help to maintain a prestige premium for particular brands, and can be quite valuable.Trademarks are used to distinguish products and brands from one another, and can play a pivotal role in protecting the designer’s reputation. Words, phrases, symbols, and designs convey a great deal to the consumer regarding the level of quality and goodwill of a brand. Often, symbols make it easier for consumers to quickly identify the source of the product and reflect a brand’s quality.A person who claims to be the proprietor of the trademark can apply for the registration of its mark for goods as well services. Moreover, it can be said that a trademark is warden of a trader.

Duration for which Trademark exits

A U.S. trademark generally lasts as long as the trademark is used in commerce and defended against infringement. However, in India, the registration of trademark exists for 10 years and is renewable every 10 years.

Trademark and Fashion Industry

Big fashion houses value their brand equity. Most develop a bond with their customers through their brand names and fiercely protect these through registration of trademarks. Many fashion goods sold by street vendors are counterfeits that plainly infringe trademarks. Occasionally a fashion design will visibly integrate a trademark to an extent that the mark becomes an element of the design. The Louis Vuitton Monochrome bags with the letters LV affixed are highly popular, one reason being that these heavily branded bags are highly noticeable. The aim is for people to notice the bag from afar, not only by the name written on it but from the logo of LV on it. For such goods, the logo is part of the design, and thus trademark provides significant protection against design copying.

Trademarks will protect the little polo ponies, alligators and penguins. But for the vast majority of apparel goods, the trademarks are either inside the garment or subtly displayed on small portions such as buttons. Hence for most garments, trademarks do not block design copying.

In 1975, famous international fashion house Bottega Veneta presented its first collection of handbags featuring a design on the outside consisting of thin strips of fabric threaded together. Over the years, the design, famously known as the “Bottega Weave”, became a recognizable feature referring to the fashion house. Unlike other fashion brands, Bottega Veneta didn’t use a logo or a brand name on the outside of its products, and the weave design served as the product’s visual signature alerting consumers. When Bottega Veneta first applied to register the weave design in 2007, the examiner refused the design four times on grounds that the design served a utilitarian advantage of strength and durability, the mark was non-distinctive, and the mark was only ornamental. In response, Bottega Veneta demonstrated that the design served as a visual indicator that immediately notified consumer that the product was from their brand. In 2013, the Trademark Trial and Appeal Board wrote that there was ample evidence that the “applicant’s weave design is recognized by consumers as a trademark for applicant’s goods” and ruled for Bottega Veneta.

Adidas has aggressively protected the stripe design with countless lawsuits and trademark oppositions against retail chains and fashion designers, ranging from Forever21 to Marc Jacobs. Adidas, the holding company for the Adidas Group, has a registered trademark for their famous “Three Stripe” design. Recently, the German sportswear giant sued Puma over this trademark. Adidas claims that Puma’s soccer cleats using four diagonal stripes on the side infringe the company’s famous three-stripe design. Adidas’s strategy of fiercely protecting its “Three Stripe” trademark might seem trivial and unnecessarily aggressive this is the cornerstone of trademark law. The mark is meant to protect against consumer confusion. In other words, it is all about prohibiting copied labels and designs that deceive consumers into believing that copied design is an original.

Trade Dress Protection

Trade Marks Designers can use trade mark law to protect not only logos and brand names, but also other distinct features of a product such as size, shape, colour or colour combinations, texture, graphics or even particular sales techniques. It was initially for product packaging like Tiffany's little blue boxes. The Louboutin red soles are part of the actual product but even without taking off the shoe, or looking inside and seeing whose signature is there, or looking at the blind stamp on the sole, you see the red sole, you know it's Louboutin; therefore, that red sole can serve as a trademark. Another great example of trade dress that involves the entire product is the Hermès Birkin or Kelly. They went off to register the entire handbag, because when you look at a Birkin, you know it's a Birkin. Bettina Liano has registered the distinctive pocket stitching on her garments as a trademark, while British fashion house Burberry holds trade mark rights in both the trade mark “Burberry” and the Burberry check pattern.

Even though designs are rendered protection in the form of copyrights, trademarks and patents, the fashion industry has faced numerous hurdles trying to obtain this protection. The law doesn’t want to extend the protection to anything that serves a utilitarian purpose and hinders further invention. General view is clothing may look fashionable and trendy, but its primary purpose is to cover us up.

Current intellectual property laws are partially to blame for the lack of greater protection for fashion designs and the fashion industry has also neglected to pursue all avenues of intellectual property rights. Many brands protect their trademarks but forget other aspects of their designs that may also be protectable. The short life cycle of a product as fashion trends come and go has deterred fashion houses from pursuing all avenues of design protection. However, some trends and style stay timeless and are classic for ages. If a design succeeds and the designer has not obtained protection in the appropriate time frame, infringers will be able to copy their designs. In the long term, cheap knock-offs can damage the brand’s goodwill in the form of lost sales, loss of value to their new designs, existing portfolio and inventory. Intellectual property rights can boost income through sales, licenses, and commercialization of existing and new products. In the current cutthroat business environment, intellectual property rights can provide a competitive advantage for the fashion industry to further innovation and creative expression.

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