Applicable Intellectual Property Rights in the Fashion Industry
The fashion business is always changing, resulting in new styles and trends that
are pushed all over the world. As a result, it is critical to safeguard the
Intellectual Property Rights (IPR) arise from these works. This includes
everything from the protection of each garement's industrial design to the
protection of the name of the brand by which such clothes are recognised in the
market as well as a variety of intellectual property rights that can be
IP has become a critical component of the fashion industry to
contribute corporate growth and also strengthening companies market positions.
Fashion is a popular aesthetic expression in clothing, footwear, lifestyle which
also describes the culture and custom of a country. Like in India women wear saree which denotes her culture from a very long time also fashion is a distinct
and industry-supported expression that has traditionally been associated with
fashion seasons and collections.
The body of law that protects the creative process is known as intellectual
property. Intellectual property is nothing more than an intangible asset. Ideas
cannot be protected, but creative expression of them can. Trademarks, Copyright,
and Patents are all part of Intellectual Property Law.
The Trademark law provides larger ambit for the protection as it protects brands
logo and has great impact on fashion industry. It is a distinctive sign that
represent goods or services in the market. The United States Patent and
Trademark Office (USPTO) allows trademark owners to register their marks, and
federal trademark protection can last as long as the mark is used in relation to
the products for which it is registered.
Once you've registered your trademark,
keep an eye on the market to make sure no one else is using a similar mark that
might infringe on your rights. Trademark search is a very important step before
the registration of that brand as this process increases the chances of
In India, fashion designs are protected by two laws: the Copyright Act of 1957
as "creative works" and the Design Act of 2000 as "designs." Primarily, there
are two features of clothing designs that these regulations can protect. To
begin, the garment's drawings/color combinations may be protected as "artwork"
under the Copyright Act. Second, under the Design Act, the shape of the garment
due to its specific fabric and couture can be protected.
The Copyright Act of
1957, Section 15(2), limits the copyrightable limits based on the design's
production quantities. The copyright would cease to exist once the fashion
article's manufacture reached 50 units. If the designer wishes to make more than
50 copies of the article, they must register the design under the Design Act to
safeguard the copyright.
There is an unique clause regarding copyright in
designs, which states that if a design is registered under the Design Act,
copyright does not exist under this Act. Design registration and copyright over
an article cannot coexist, according to the Act.
As the plaintiff in the Ritika Private Limited v. Biba Apparels Private Limited
case discovered the hard way, relying solely on the Copyright Act to protect
one's design from being copied by other manufacturers has some nasty
limitations: if the design is reproduced industrially more than fifty times by
the copyright owner, as would be expected of a fashion brand, the design loses
its copyright privileges and becomes freely available to be copied by others.
this case, the plaintiff Ritika Private Limited sued the defendant Biba
Apparels, saying that the latter had infringed on the plaintiff's copyright by
using specific patterns in their products. The court ruled in favour of the
defendants because the design had not been registered under the Designs Act and
had been replicated more than fifty times by the plaintiff.The court found in
favour of the plaintiff in a similar case where the plaintiff sought protection
for a design that was not registered under the Designs Act but had been
replicated less than fifty times.
To be patentable, a creation must be useful, original, and innovative. Patents
are not available for artistic creations, thus they may not immediately come to
mind when discussing the fashion sector. Furthermore, because fashion trends
change frequently, obtaining a patent is not worthwhile, and patents can be
prohibitively expensive until a design can be duplicated year after year.
Fashion patents give producers exclusive legal rights to their creations,
whether it's a product, design, or procedure in the fashion industry.As a
result, a company/creator can safeguard its intellectual property rights by
getting a patent on a novel creation (IP).
The Designs Act of 2000 was written to safeguard the non-functional components
of an object that have visual appeal, such as design features such as shape
configuration, pattern, decoration, or composition of lines or colours applied
to any two-dimensional, three-dimensional, or both forms. Such a design right is
valid for ten years and can be extended subject to certain circumstances for a
total of 15 years.
In the case of piracy of a registered design, Section 22 of The Design Act
states that the infringer must 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 damages and an injunction against repetition, damages may be
awarded and the person may be restrained by injunction.
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