Written by : Saachi mukundappanavar
Intellectual properties in laymen terms are those kind of assets which is firstly intangible in nature and secondly provides certain rights to a person or organization on their creations and innovations. These creations can be on any nature or kind. main categories of intellectual property rights are Patents, trademark, Copyrights and Trade Secrets. According to the Merriam-Webster Dictionary, fashion is defined as “the prevailing style of a particular time.”
Majorly in fashion industry we see copyright and trademark infringement cases Original works of authorship are protected by copyright, a sort of intellectual property, as soon as the author fixes the work in a concrete form of expression. Paintings, photos, illustrations, sound recordings, movies, architectural works, plays, and other forms of works are all covered under copyright law, whereas trademark is any word, phrase, symbol, design or a combination of these things that helps to identify any goods or services in marketplace. It’s a unique identity to recognise one’s place in market and to identify oneself apart from its competition.
A trademark:
a. Shows where your products or services come from.
b. Offers your trademark legal protection.
c. Aids in protecting you from fraud and counterfeiting.
A Patent is an absolute right that has been granted to a person who has invented something or has an invention or innovation to his name. This invention should be his own and not copied or plaigirised. Invention per se is a very broad term, for example if u invent a software, is the whole software patented or is just one part of it patented, if there is a major modification done to a patented product or slight modification being done, will it be considered an invention and be eligible for patent rights. There are multiple factors that need to be taken into consideration while a patent is being granted.
ROLE OF IP IN FASHION INDUSTRY:
Fashion has become an integral art of the modern Indian society. Brands are a hue deal these days, there are normal range brands then luxury brands which have a very high price range and particularly cater to the high class category. Intellectual property in particular helps brand create an awareness among the general public. Fashion designers have employed several forms of intellectual property to safeguard their creations, therefore these rights are essential to their financial gain in the sector.
Fashion has become so widely popular because of IP law. Consider runways: hardly few of the designs exhibited are carried by retailers. Designers use the runway as a platform to showcase their artistic abilities, draw attention from the press, and increase brand awareness. They also give brands the chance to market more reasonably priced products with their names clearly displayed, like T-shirts, cosmetics, and perfumes. So much of the fashion industry thrives on this form of IP licencing. IP is a vital resource for the fashion industry.
IP cases in fashion industry cannot only be associated with basic copyright infringement cases, for example consider the case of Christian Louboutin vs Nakul Bajaj & ors[1] in which a judgement was given on the liability of an e-commerce as an intermediary of IP rights. This judgement was delivered in 2018, wherein the Defendant was operating a website and was selling various opulent items, such as high-end shoes under the "Christian Louboutin" brand. The plaintiff argued that The defendant’s website is in some-way affiliated or sponsored by them to sell their high end products on their website, therefore they claimed that their trademark rights were being majorly violated. The defendant argued that the website is just an intermediary to “book” their products and not actually sell them. Sec 79[2] of the IT ACT 2000 was the defence and the liability of the online marketplace in India was taken into consideration to decide the case. In the final decision the court held the defendant liable as it wasn’t an intermediary under sec 79 of the IT act 2000 and was held responsible for encroachment. This was an interesting trademark case in 2018 that included the aspect of E-commerce and their liability.
Copyright cases are very common in this field as there are designs, logos or other distinctive elements that needs to be taken into account. Copyright violations in the quick-paced fashion business can be caused by making replicas, counterfeit goods, or even exact copies of well-known designs. There is immense importance of copyright protection in fashion industry. When someone uses, replicates, or imitates protected trademarks, logos, fashion designs, or other features without the owner's consent, it is considered copyright infringement in the clothing industry. It also includes unauthorised use of a person’s creative design and claiming it as their own. Regardless of your industry—fashion or otherwise—intellectual property is the cornerstone for safeguarding your concept and idea. Without copyright protection our ideas, our innovation, and business model are all vulnerable to theft. A fashion design will not be registered under the Designs Act, 2000. Copyright infringement basically transpires whenever any copyrighted work is being reproduced or distributed or copied in any form without any consent from the owner. Copyright protection is implicitly granted once a piece of original work has been created and shared; if you are the one creating it, copyright protection is immediately granted. In India, design registration is valid for 10 years and +5 years additional protection (application for renewal).
The Copyright Act does not protect ideas, concepts, or facts. If there is something in trend and it’s been used by someone then that will definitely not be counted as copyright infringement. For example if polka dots clothes or off shoulder tops are in trend and if a lot of designers produce the same kind of designs it will not come under the ambit of copyright infringement. Let’s take example of famous clothing brands like H and M and well known online clothing brand, Shein. H and M (Hennes and Mauritz) decided to sue Shein for copyright infringement for allegedly implementing their designs in their clothes and selling it on their websites. In the court filing, Shein Group Ltd. and Zoetop Business Co., the Hong Kong-based company that once owned Shein, are listed as defendants. Sweaters and swimwear are being submitted as evidence in court by H and M, who have accused Shein of duplicating their concepts.
If we take Patent for an example then how can patent infringement be a part of fashion industry then we will come across cases wherein AGFA has lodged a patent infringement case at the Hamburg unified Patent court against a number of Gucci’s European entities. This case has been filed concerning Agfa’s patent which outlines a manufacturing process for adding a decorative picture to natural leather. For Agfa, this is a vital future prospected area. Gucci is accused by the latter of utilising this technique for embellishing their leather goods. Agfa is suing a number of Gucci businesses, including subsidiaries in Germany and Belgium for this patent infringement.
A production process that involves the following procedures to decorate raw leather with a decorative image:
a. putting a base coat containing a pigment to crusted leather to provide an achromatic hue other than black;
b. inkjet printing a colour image employing one or more pigmented UV curable inkjet inks on the base coat
c. adding an optional heat pressing or embossing step;
d. optionally applying a protective top coat on the image.
This patent was granted on 21st July 2021. AGFA is suing nine Gucci companies worldwide for patent infringement, according to UPC filings. The Hamburg division of the Court received the case on August 16, 2023, and English will be the language of the proceedings. UPC Is Unified Patent court, is a court comprising judges from all participating member states of the European union. It is set up to decide cases specifically in patent infringement.
In fashion what is being seen is being sold. Brands are known by their logos which sets them apart from the rest of the brands. As its being said that the 1st impression is the last impression, thus brands need to make sure that it attracts the customer as soon as he lays his eyes upon it. Logos are meant to be attractive & distinct. Before commencing to use a trademark, it is crucial to carry out a trademark search to see if anyone else is currently using a mark that is similar and that you will not be legally questioned you. In the case of Louis Vuitton vs My other Bag wherein the defendant company sells Canvas Tote bags with the Print "My Other Bag" on one end, and images of designer handbags from well-known brands like "Chanel", "Fendi", and "Louis Vuitton" on the other. Louis Vuitton launched a complaint, alleging trademark infringement and counterfeiting among other things, after taking offence at the company's prior products.
These are the main ways that intellectual property in the fashion business emerges. Protecting your intangible property is crucial for all types of brands, from small, independent businesses to high-end luxury brands. Copyright prevents others from duplicating your work, trademarks help you stand out from the competition, and patenting a product safeguards the technology behind it. We must ensure that every requirement is met in order to determine whether there has actually been an infringement.
[1]Christian Louboutin vs Nakul Bajaj & Ors, 2 236 (2017) DLT 478.
[2] The Information Technology Act, § 79, 2000
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