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THE GROWTH AND HURDLES OF THE FASHION INDUSTRY WITH IPR LAWS

INTRODUCTION

The Fashion Industry has been rapidly growing and flourishing in recent times clothing, accessories, luxuries, etc. are an all-time high demand. It is a very dynamic and fast-growing industry and with the evolution of the internet, it’s become more dynamic than ever. The reach to expensive sleek products which were restricted to the rich people in the past is now available to the general public with one tap. But this simple-looking glamorous industry involves a lot of hard work and creativity, a designer works for years to prepare a particular design. But in recent times this industry is facing a serious issue of fake and plagiarized products which not only harms the industry but the economy of a nation as well. Fashion is an intangible creation of the human mind and is protected under IPR laws. WTO’s TRIPS Agreement, 1995 provides extensive protection to the intangible creation on line with this in India we have IPR laws that protect the Intangible creation of the human mind[1]. In this article, the writer will discuss the laws which protect the fashion Industry, why the fashion industry needs protection and how it can be protected.

LAWS THAT PROTECT THE FASHION INDUSTRY

The Fashion Industry involves a lot of hard work of a designer or a company not only this, it’s a huge source of revenue for an economy. It’s a most vulnerable industry in terms of IPR violation and due to the lack of proper laws and protection, it is easy to evade the penalty. In India protection of the Fashion Industry is improvised under IPR law specifically under Patent Act, 1970; Copyright Act, 1957; Design Act, 2000; Trademark Act, 1999; Trade Secret Act, GI of goods (Registration and Protection) Act,1999 and under some provisions of The Indian Contract Act, 1872. So, in India it is protected under both civil and criminal law but, a criminal suit can be brought only against Trademark and Copyright infringement other IPR laws are civil in nature[2]. These laws protect the Fashion Industry from fake, plagiarized, cribbing products. Piracy is widely practiced in this industry. Piracy means copying the original work by imitation without the consent of the designer or the company. It simply means copying someone’s original work without authorization. It involves two types of work knock-off and counterfeit. Knock-offs are an imitation of original products with some changes. Its aim is not to deceive the consumer but rather to make a profit and make the products available to the general consumer. A distinction can be made between genuine products and knockoffs. It is not illegal and not an offense. Counterfeit is the copying of an original product and its aim is to give a false impression to the consumer that the product is original and genuine. A clear distinction cannot be made between counterfeit and the original product. It’s illegal to work and an offense.

The Trademark Act, 1999, protects the logo, brand name, colour combination, symbols, the secant, etc. of a product or company. It is given for a period of 10 years and further renewal is required for another 10 years[3]. This brand name, symbols, etc., act as the goodwill of a product and consumers often buy products by trusting these marks. The Trademark act is effective in protecting the goodwill and reputation of a product, business or company and restraining unauthorized use of the same.

Goodwill of a company or brand or business is also protected under Exception 1 of section 27[4] of The Indian Contract Act, 1872. On one hand, Section 27 makes, an agreement in restraint of trade void, and on the other hand Exception 1 of section 27 restrains a person to enter into an agreement where goodwill is sold. “There is no specific law or enactment of trade secrets in India. However, rights in respect of trade secrets are enforced through contract law (Indian Contract Act, 1872), copyright law (The Copyright Act, 1957), and principles of equity and common-law action for breach of confidence.”[5]

The Copyright Act of 1957, protects the literary and artistic work of an artist. It protects the work of an artist for the lifetime of the artist plus sixty years after his death and provides a long-term safety to original work[6]. The Design Act, 2000, its main purpose is to protect the original and genuine design[7]. Section 2(d)[8] says that the design of an article or product is the shape, configuration, pattern, colour, ornaments, and composition of lines of that article or product is design. The Copyright and Design Act overlap when it comes to the protection of the design of a product. Section 15(1)[9], says that a design protected under the Design Act cannot be registered and protected under the Copyright Act. And Section 15(2)[10] provides that a design capable of being registered under the Design Act can be registered under the Copyright Act but if the article or product has been reproduced more than fifty times by industrial process without registration it shall cease as soon as the article reproduce.

The Patent Act of 1970, does not directly protect the Fashion Industry because artistic creation cannot be patented so, designs cannot be patented. But if it involves some technology and innovation which is noble has some industrial utilization and is an inventive step, then that innovation can be patented. For example, Suberis is a fabric invented by Italian company Grindi Srl, it has some unique features, and is patented in many countries around the world[11].

Geographical Indications of Goods (Registration and Protection) Act, 1999, gives protection to products found in a particular geographical area. It provides a Tag known as GI Tag I.e., Geographical Indication Tag to the products registered under Act. It protects the right of all the person who lives in a particular geographical area on the product which is registered under the Act, it is given collectively to all the people residing in that geographical area[12]. It is given for a period of 10 years and needs to be renewed every 10 years[13]. Many fashion products I.e., the traditional fabrics, handloom, footwear, etc., are found in a specific geographical area protected with GI Tag such as Kolhapuri chappal[14] of Kolhapur, Maharashtra. Banarasi Saree[15] of Banaras, U.P; Pashmina shawl[16] of Kashmir; Kanchipuram silk saree[17] of Kanchipuram, Tamil Nadu, etc.

These laws give protection to the fashion industry and save it from misuse but these laws are not sufficient, with technological advancement and development the contour of the fake industry is also growing.

NEED FOR PROTECTION FOR THE FASHION INDUSTRY

The question what is the need of protecting the fashion industry? Before answering this question let’s see how and why fake industries flourishes. This fake product fulfils the need of a consumer no matter how. In a country like India, where more than half of the population live below the poverty line these fake products become the real fulfilment of the desire for fashion and luxury products. And the poverty and desire for luxury stuff flourish in Fake Industry. The Fashion Industry completely relies on creativity so to encourage them it needs protection. It takes lots of time, manual labour, and resources to create a design. In absence of proper regulation, also hurts the economy of a country. The revenue generated by this fake industry goes unnoticed and crime flourishes under the shroud of this Fake industry. And sometimes it became a major source of terror funding.

CONCLUSION

Sometimes it happens that the people who indulge in copying do not know that they are violating the rights of a creator or company their sole intention is to make a profit by fulfilling the demand of the trend. This is because of the absence of any exclusive law which makes the differentiation between knockoffs and counterfeit unclear. Proper enforcement and awareness of existing laws can help in reducing misuse. For example, the overlapping of The Design Act, 2000 and Copyright Act, 1957, led Rittika private limited to lose the case in Rittika Private Limited v. Biba Apparels Private Limited[18]. The dynamic nature of this industry also leads to many problems because tons of products are released every day so, it’s hard to regulate it in absence of a specific law. So, enforcement of an extensive new law that gives extensive protection to this dynamic industry is also the need of the hour.

Author(s) Name: Priti Kumari (Jogesh Chandra Chaudhuri Law College, Kolkata)

References:

[1] Department For Promotion of  Industry and Internal Trade, https://dpiit.gov.in/international-co-operation/world-intellectual-property-organization (last visited date June 6, 2022)

[2]Namrata Pahwa, ‘Juxtaposition of IP and Criminal Law’ (CCLSNLUJ, 3 December, 2020) <https://criminallawstudiesnluj.wordpress.com/2020/12/03/juxtaposition-of-ip-and-criminal-law/#:~:text=In%20India%2C%20intellectual%20property%20is,under%20civil%20and%20criminal%20law> accessed 3 June 2022.

[3] The Trade Marks Act, 1999, s 25

[4] Indian Contract Act, 1872, s 27

[5]European Commission, https://intellectual-property-helpdesk.ec.europa.eu/news-events/news/short-introduction-trade-secrets-india-2021-11-05_en (Last visited date June 6, 2022)

[6] The Copyright Act,1957, s 22

[7] Department For Promotion of  Industry and Internal Trade, https://ipindia.gov.in/designs.htm ( last visited date June 6, 2022)

[8] The Design Act,2000, s 2(d)

[9] The Copyright Act,1957, s 15(1)

[10] The Copyright Act,1957, s 15(2)

[11]‘IP and Business: Intellectual Property in the Fashion Industry’ (WIPO, May 2005) <https://www.wipo.int/wipo_magazine/en/2005/03/article_0009.html> accessed 03 June 2022

[12] The Geographical Indications of Goods (Registration and Protection) Act, 1999, s 2(1)(e)

[13] The Geographical Indications of Goods (Registration and Protection) Act, 1999, s 18(1)

[14] Geographical Indications Registry, https://search.ipindia.gov.in/GIRPublic/Application/Details/169 (last visited date June 6, 2022)

[15] Geographical Indications Registry, https://search.ipindia.gov.in/GIRPublic/Application/Details/237 (last visited date June 6, 2022)

[16] Geographical Indications Registry, https://search.ipindia.gov.in/GIRPublic/Application/Details/46 (last visited date June 6, 2022)

[17] Geographical Indications Registry, https://search.ipindia.gov.in/GIRPublic/Application/Details/15 (last visited date June 6, 2022)

[18]Rittika Private Limited v. Biba Apparels Private Limited (2016) CS(OS) No. 182/2011