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Fashion Law And Its Scope With Reference To Important Case Laws

Fashion law, otherwise called apparel law, is an evolving forte or talent so to speak that includes issues encompassing the life of a piece of clothing from origination to brand assurance. Fashion law clients comprise of mostly design houses, wholesalers, tailors, modeling agencies, retailers, and photographers. Since the field is not one which a person would think of normally, there are very less institutions in India as well as abroad that offer young to- be lawyers to specialize in the fashion industry. This article deals with the important case laws which specifically focuses on the nuances of the fashion law.

Introduction:
Fashion is a part of our everyday life. It has been a part of process of evolution since the inception and has bloomed into a very independent and separate industry itself creating new brands and businesses and providing employment to numerous and contributing, what is, a huge chunk of the nation's economy.

Fashion is a form of art and thus, this industry is based on the creativity and ideas of the designers. Exclusivity is tool of every brand and business operating in this market that approaches the snobbish appeal to a certain class of people making them different from the others. The bigger the brand, the greater is the appeal and thus, greater is the demand of the product and monetary benefits. This act of copying or counterfeiting poses a great threat not just to the existence of multi-national fashion brands in India, but also to the economy.

Fashion lawyers assist their clients on legal issues confronting the style, material, clothing, extravagance, footwear, gems, and beautifying agents- cosmetic businesses. These run the extent from authorizing, marketing, conveyance, and diversifying contracts to licensed innovation/ intellectual property, business, and labour related issues.

They involve security, manageability, and consumer protection issues. Different parts of corporate, land, assessment, and business law additionally become possibly the most important factor of fashion law. Fashion attorneys play out a wide scope of obligations from drafting and negotiating contracts to acknowledgement and litigation of trademark, copyright, and other IPR related issues.

Thus, cometh the need of IPR laws tot protect the intellectual property ,i. e the designs of the designers from getting copied and them getting striped off their rights over their designs. The laws in India that protect the work of the designers from design piracy are majorly Copyrights act and Design act, but trademarks act and Patents act also works in Chorus.

Case study 1:
Adidas America Inc V Skechers Usa Inc[1]:
Adidas sought preliminary injunction against Skechers for infringement and dilution of Stan smith trade dress and three- stripe mark. District Court issued preliminary injunction prohibiting sketchers from selling two styles of shoe. Ninth circuit affirmed findings as to Onixshoe, but reversed preliminary injunction on cross court shoe.

In this case, Plaintiff adidas America Inc filed a motion for preliminary injunction against defendant Skechers USA Inc under claims of:

  1. Infringement of adidas unregistered stan smith trade dress.
  2. Infringement of adidas three-stripe trademark ; and
  3. Dilution of adidas three -stripe trademark


The U.S District Court of Oregon granted adidas motion for preliminary injunction prohibiting sketchers from selling two styles of shoe- alleged by adidas to infringe and/or dilute adidas' trade dress and trademark. Sketchers and adidas are direct competition holding the second and third market share positions in the footwear industry in the United States (behind Nike). Adidas sells many styles of shoes, but places emphasis on its stan smith shoe and products adorned with its three-stripe trademark.

The defendant sells two shoes at issue here; the Onix and the Cross court. Adidas alleged that the Onix infringed its Stan Smith trade dress , and the Cross court infringed and diluted its three-striped mark.

Adidas three stripe mark and Skecher's Cross Court:
First, the ninth circuit found that the district court did not abuse its discretion in finding a likelihood of success on the merits for both the infringement and dilution claims.Despite the parties litigious history, sketchers continued to adopt confusingly similar marks and the ninth circuit placed emphasis on the high degree of recognition and strength of adidas mark as well as the relatedness of the goods to support the claims. Lastly, the Ninth circuit reviewed the district court's finding of likelihood of irreparable harm and reversed the district court.

Adidas irreparable harm arguments centered on sketchers product being of inferior quality. However, the ninth circuit found that this theory was inconsistent with adidas arguments that the likelihood of confusion for sketchers' s cross court shoe would be  post-sale confusion- that is , confusion would occur when the public is viewing the sketcher's shoe from a distance. The cross court shoe contained numerous sketchers logos and identifying features.

The court disposed of adidas contradicting arguments by stating.
How would customers who confused cross courts for adidas shoes be able to Surmise , form afar, that shoes were low quality… Even if sketchers does make inferior products, there is no evidence that adidas' theory of post- sale confusion would cause consumers to associate such lesser -quality products with adidas.

The Ninth Circuit thus reversed the Preliminary injunction issues on Sketcher's Cross court Shoe.Judge Clifton concurred in part and dissented in part, stating that both Original preliminary injunctions should be upheld.

Case study 2:
Star Athletica ,Llc V Varsity Brands,Inc[2]:
The recent landmark case- Star Athletica, LLC v Varsity Brands, Inc:
is likely to have an impact on the fashion industry in the United States. The case, which went to the US Supreme Court, centers on the copyrightability of designs on the surface of cheerleader uniforms and the concept of separability, which is a pre-requisite for a garment or other useful article to be protected under U.S copyright law. As copyright law does not seek to protect or create a monopoly over useful articles, and as garments, dresses, shoes, bags and so forth are considered useful items, they don't qualify for copyright protection as a whole.

Only design features that can be separated from a garment or other utilitarian or useful item, so to speak, qualify for copyright protection in the United States. The whole issue has been a major source of frustration for designers in the United States for some time because it means that only certain aspects of their garments, and not the garment as a whole, are protectable.With that as a baseline, fashion businesses in the United States are using IP in interesting and creative ways.

For example, we now see growing reliance on design patent protection, even though it is more expensive and time-consuming to obtain than copyright protection. More businesses are also relying on trademark protection to protect their brands and trade dress (i.e. the appearance and packaging of their products).

Rule:
The first element of a copyright infringement claim is ownership of a valid copyright. A valid copyright extends only to copyrightable subject matter. The copyright Act of 1976 defines Copyrightable subject matter as original works of authorship fixed in any tangible medium of expression.

Works of authorship include pictorial, graphic and sculptural works Section 102(a)(5) which the statute defines to include two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models and technical drawings including architectural plans.And a work of authorship is fixed in a tangible medium of expression when it is embodied in a material object form which the work can be perceived , reproduced or otherwise communicated.

Facts[3]:
Respondent Varsity brands. Inc have more than 200 copyright registrations for two-dimensional designs-consisting of various lines, chevrons and colorful shapes-appearing on the surface of the cheerleading uniforms that they design, make and sell.

They sued petitioner Star Athletica,L.L.C ( Star Athletica) who also markets cheerleading uniforms for copyright infringement. The district court granted Star Athletica Summary Judgment, holding that the designs could not be conceptually or physically separated from the uniforms and were therefore eligible for copyright protection. In reversing the sixth circuit concluded that the graphics could be  identified Separately and were  Capable of existing independently of the uniforms.

Issue: Are the graphics Copyrightable?
Answer: Yes

Conclusion:
The court held that the United States Court of appeals for the sixth circuit did not err when it found that graphics that were used by a company that manufactures cheerleading uniforms were copyrightable. Because they could be identified separately and were capable of existing independently of uniforms the company manufactures.

The court also found that the features incorporated into the design of a useful article were eligible for copyright protection, if they could be perceived as two-or -three dimensional works of art separate from the useful article and qualified as a protectable pictorial, graphic, or sculptural work-either on their own or fixed in some other tangible medium of expression, if they were imagined separately from the useful article into which they were incorporated.

Case study 3:
L'oreal v Shiseido:
Legal Issue: Non -compete contracts
Facts: Beauty companies[4] are often fighting for the same customers, but they apparently find themselves fighting for the same high -level employees as well. That was the case earlier this fall, when L'oreal sued Shiseido, to keep a former senior Vice President from starting work at the Japanese Brand before the full period of his non-compete agreement had run out.

L'oreal argued that the former executive's knowledge if its business threatened a planned custom foundation rollout and a court quickly halted the executive's work at shiseido. The case has since been settled out of court, but the executive does not appear to have formerly started his position at Shiseido. Higher -level employees position at Shiseido. Higher-level employees working in fashion and beauty should take note that Courts tend to view reasonable non-competes, which are becoming more and more common, with clear terns as simple contracts worthy of enforcement.

Case Study 4:
Puma and Gucci/Adidas v Forever 21:
Legal Issue: Design Copying[5]
Facts: Lawyers for forever 21 have been keeping busy this year. First, Adidas accused the fast-fashion chain of copying its trademarked three-stripe design on a range of goods, then Kering-operated Puma launched a battle over what it argued were clear knockoffs of popular shoe designs by Rihanna for her fenty line. Undeterred, forever 21 then took a Pre-emptive strike at Gucci, which had allegedly sent it cease- and - desists letters regarding striped apparel it claimed was a rip off of its classic and trademarked grosgrain two-tone stripe details.

The luxury brand hit back with claims of infringement, arguing forever 21's blatant exploitation of its designs could not continue. Adidas and Puma's arguments were also along those lines, but all of the cases are ongoing. With forever 21 generally defending itself as manufacturing popular, but unprotectable , designs.

Sweeping rulings on design and trademark infringement in fashion are scarce, and judges tend to be tasked first with deciding if a given design is even worthy of protection, and then move onto culpability. Should a judge find forever 21 took another brands ideas and used them for its own gain, it would at least dampen its proclivity for copycat designs and signal to others like it that courts are taking a serious look at litigation over designs. The amount of litigation alleging design copies could also increase exponentially.

Case study 5
Sales Associates v Forever 21 and Gucci and Sterling jewelers and Wal-Mart:

Legal Issue: Worker harassment, Discrimination , negligence
Facts : There has been a string of worker lawsuits against some of the biggest and well-known retailers and brands[6] this year, and none look to be headed for resolution anytime soon. Forever 21 is being accused of allowing a hidden camera to be installed inside an employee bathroom, which was discovered only because footage of one former saleswoman ended up online. A former Gucci Saleswoman claims she was regularly subjected to sexual taunts and alarming encounters with her store manager with no recourse.

Sterling jewelers hired its first female ceo in the wake of years -long arbitration turning up dozens of accounts of harassment by male executives and managers. And Wal-Mart stores Inc, is again being accused of systematically paying and promoting women in its stores less than men.

Retail, which employs some 4.6 million people in the U.S , where a majority of dales associates are women, could also be due for something of a reckoning. Lawsuits are often the first signal to lawmakers and sometimes companies that issues are systemic and require broader action.If any of the above lawsuits resulted in a win for a plaintiff, retailers would at least be on notice that ensuring the safety and rights of their workers should be very high on any list of business priorities.

Conclusion:
Fashion industry is the ever growing and evolving industry which is most likely would never go down. And thus, for fair play to persists in this industry,stricter laws are required.The threat that is copying and counterfeiting results not only in monetary losses but also demotivates the designers to create something new and innovative. Piracy kills creation and thus, eradicating piracy is of foremost importance. Thus, these case studies reveals the importance of intellectual Property law in Fashion industry and their impact in this globalized era.

End-Notes:

  1. adidas v Skechers: was a preliminary injunction proper? United States -KnobbeMartens ,World Trademark Review
  2. 137 S.ct.1002(2017).
  3. Harvard Law Review, 131 Harv.L.Rev.363.

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