Fashion is form of art. Art is way of expressing yourself. Fashion is a trend
it really defines a lot of people, it touches everybody. It is one and only
industry which has 100% participation. Fashion will never go away or say style
will never fade. People will never stop buying clothes. The notion of the global
Fashion industry is a product of the modern age.
Before mid 19th century, clothes were mostly custom made. They were beautifully
handcrafted by artisans. Fashion is a popular aesthetic expression at a
particular time and place and in a specific context, especially in clothing,
footwear, lifestyle, accessories, makeup, hairstyles. Fashion is distinctive and
industry supported expression traditionally tied to the Fashion Fashion seasons
We all have came across or say we all open minded to adapt new Fashion
challenges. We have never had came across an individual who does not like GUCCI,
LOUIS VUITTON, Prada etc bags and their collections, FILA shoes, and the most
beautiful and magical lehenga desgined by Sabyasachi Mukherjee or Manish
Malhotra. We have seen no man getting amazed by Rolex or Rado watches or
chic-loafers. Well we have always came across some or the other individual
having amazing Fashion style.
Fashion and Intellectual Property
Intellectual Property is the basis for protecting your concept and your idea,
regardless of whether you are in Fashion or in any other industry. Intellectual
Property is the body of Law that protects the creative process. Intellectual
Property is simply an intangible property. The ideas are not protectable, but
artistic expression of an idea is. Intellectual Property Law is basically a mix
of Trademark, Copyright and Patents.
Fashion industry covers a wide ambit of Intellectual property rights within it.
Fashion industries are just only with collection of clothes but also footwears,
jewelry's, accessories etc. fashion industry is rapidly growing and many Indian
Designers such as Ritu Kumar, Rahul bal , JJ Valya have succeeded in protecting
their fashion designs.
As per study conducted by the associated chambers of commerce and industry India
(ASSOCHAM), the domestic designer apparel industry in India by year 2020 will
cross over Rs 11,000 crore. Even though contribution of Indian designer
worldwide is minimal to 0.32% but by year 2020 it may reach by 1.7%.
Trademark Law probably has the biggest impact on Fashion. It's the brand or the
logo. It can be also more than just a name. Every great brand has a Trademark
like Kate Spade, Calvin Kevin, Ralph Lauren, Channel, Gucci, LOUIS VUITTON, H&M,
Tiffiny & Co. etc . All of these brands are well known and Trademarked. I
believe that the real primary purpose of Trademark Law is to avoid confusion in
the marketplace amongst costumers.
Can you Trademark Colour?Christian Louboutin V. Yves Saint Laurent
This case can be said to be landmark case to create awareness in public
regarding the Fashion Law. A Trademark case involves Christian Louboutin and his
red soles. Christain louboutin is a French designer who has Trademarked in the
US and in a number of other countries around the world. It is widely recognized
that when you see that red, you knew it its Christian Louboutin shoe. It is very
high definition of Trademark.
Ferrari red, tiffinay & co. colour blue. There are many companies that have
established good Trademark rights in color.
A Copyright is nothing more, nothing less, than a right to Copy. Its designed to
encourage more artistic creation and expression by giving creation control. The
moment you put pen or paper to draw a design or drawing, creating sculpture or
compose a musical piece , you have a Copyright in that work. Overall, the cut
and silhouette and shape of a dress is not protected by Copyright Law. You don't
want Copyright to protect, for example the cut of Jacket because Jacket has two
arms and buttons, think of your standard blazer.
For example Diane Von Furstenberg wrap dress, the wrap dress itself is not
protectable, but the design is protectable.
Star Athletica V. Varsity Brands
The star case Athletica case
dealt with a simple question which is if you
have series of sizes and shapes on an article of clothing, is that protectable?
An employee of this company that made pretty much all the cheerleaders uniform
in the country went to another country and copied some of the designs of his
original employer. His new company was sued for Copyright infringement. The
Court looked into two different aspects of the designs. Theirs is the more
Utilitarian Design , Like the cut of the uniform, versus the designs, the images
that were on the uniforms. The Court states that the Copyright would not protect
the cut of the apparel , but would protect the design.
In Rajesh Masrani v Tahliani Design
 30the Division Bench of the Delhi
High Court was provided with an opportunity to respond to some aspects
highlighted above. In the case, the Plaintiff alleged that the drawings which it
made in the course of developing garments and accessories were artistic works
under Section 2(i)(c) of the Copyright Act, 1957. The patterns printed and
embroidered on the fabric were also alleged to be artistic works, as were the
garments finally designed. The plaintiff also alleged infringement of copyright
in these various artistic works, and a Single Judge issued an interim injunction
in its favor.
Piracy is very common in art and design industry. It involves unauthorized
copying of original fashion designs. Designs are counterfeited and knocked off.
Designs made by fashion designers can be protected under various categories of
Intellectual Property as follows:
- The sketch design can be registered as artistic work under copyright
- Design can be well protected under desgins act under class 02,03,05,10
and 11 of third schedule of design rules 2000).
- Colour combinations can be protected under copyright act,1957.
- Fabric or any material used in art or design can also be protected under
designs act, 2000 and patents act 1970.
- Logo designs are protected under the trademarks act, 1999. Louis Vuitton
handbag covered with repeating pattern of brand is well known by LV mark.
Revelant Legal Provisons relating to this Industry
IPR Law in India provides protection to the fashion design under three
- The Designs Act, 2000,
- The Indian Copyright Act, 1957,
- The Trademarks Act, 1999 and GI Act, 1999.
From the perspective of Fashion Industry, the Acts do not protect the entire
garment as a whole; rather it protects the particular/individual aspects like
shape, pattern, colour etc. of the garment.
Protection under Design ActThe Designs Act 2000, is drafted for the protection of the 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 any two dimensional or three dimensional or on both forms.
Such a design right remains in force for a period of ten years, extendable
subject to conditions, for a total period of 15 years.
Section 22 of The Design Act states that in the case of piracy of a
registered design, the infringer shall be liable to pay the registered
proprietor of the design a sum not exceeding Rs25,000 recoverable as a contract
debt; if the proprietor elects to bring a suit for the recovery of damages for
any contravention of the rights conferred to him and for an injunction against
repetition of it, damages may be awarded and the person may be restrained by
The design registration system in India is time bound and the fastest of all IP
registration procedures. Once registered the proprietor enjoys monopoly and
exclusive rights not only against copies of the protected design, but also
against substantially similar products.
Protection under Copyright ActA fashion design which is capable of being registered as design under the
Designs Act, 2000 and registered as per the provisions of the Act will get
copyright protection only under the Designs Act and nowhere else. In this
scenario, copyright in registered fashion design will subsist for a maximum
period of fifteen years. Fashion design, which is capable of being registered as design under the Designs Act, 2000 but not so registered will get copyright
protection under the Copyright Act, 1957. Copyright in fashion design, in this
context, will subsist up to fiftieth (50th) reproduction by an industrial
process of the article to which design has been applied.
Section 15 of The Copyright Act provides for special provisions stating that
copyright shall not subsist in any design, which is registered or capable of
being registered under The Design Act. Another important parameter of this
provision is that copyright in the design shall cease as soon as any article to
which the design has been applied has been reproduced more than fifty times by
an industrial process by the owner of the copyright or with his license by any
other person. This clause stymies the inherent protection accorded by copyright
that a person enjoys merely by virtue of creation.
The original artistic work, as contrasted with the applied artistic work i.e.
the design would continue to fall within the ambit of artistic work under
copyright Act and shall be entitled to full period of copyright protection. The
commercial/industrial manifestation of original work such as the design derived
from and founded upon the original artistic work for the purpose of industrial
production of furnishings would be covered by the limitations under Section 15
of the Copyright Act.
To protect his/her creations under the Copyright Act, 1957, Fashion designer
needs to prove:
- That his/her creation is an original artistic work within the meaning of
the Copyright Act, 1957 and is not a design within the meaning of the Designs
Act, 2000; and
- That the article (e.g. garment), to which the design derived from the creation
has been applied, has not been reproduced more than fifty times by an industrial
process by the owner of the copyright or, with his license, by any other person.
Protection under Trade mark Act A trademark is useful for a fashion design only in a situation where it is
visibly integrated into design to such an extent that it becomes an element of
the design. There is a growing tendency among fashion designers to incorporate a
trademarked logo on the outside of the garment at the time of creation of
clothing and accessory designs. In these circumstances, the logo becomes part of
the design, thus trademark provides significant protection against
design copying. Further, the brand names as such also become the subject matter
of protection under the Trade Marks Act, 1999.
Protection under Geographical Indications Act, 1999 
The Fourth schedule of the GI Act provides for a classification of goods
protectable under the Act. The registration of geographical indications
evidently depicts the protection of fashion apparel vis-a-vis the texture and
artistic value in the fabric used to create apparels and accessories. Till now
about, 15 kinds of GIs have been registered in respect of textiles in India like
Kasuti Embroidery from Karnataka, Kutch embroidery from Gujarat, and Sujini
embroidery works from Bihar, etc.