This article is co-authored by Ms. Zoya Nafis, LexOrbis Associate and Aditi Kharpate, a student of 4th year BBA.LL.B, from Symbiosis Law School, Noida
Fashion is primarily based on creativity, and creativity comes from the intellect of a person. With the influence of time, culture and economy, the fashion industry has developed and emerged in variant fields. However this rapid growth of the fashion industry is constantly under the threat because the ideas and designs are more prone to be copied easily.
It is an established fact that the fashion houses make huge investments and efforts in creating original designs but the sad part is that the original ideas and designs are often misappropriated by the retailers and ready-to-wear apparel makers. In order to protect their ideas and designs, designers who wish to possess ownership on their work usually sought legal protection by registering their designs under the Copyright law and Designs law as they are most suited to fashion industry in India.
This discussion raises an obvious question that what can be protected under IP? Primarily the protection of IP can be said to be primarily dependant on the type of IP sought that is trademarks, design, copyright and patent and also on the nature of the article which is to be protected. Because of the complex and blending nature of articles designed by fashion designers, they can be protected under various categories of IP as follows:
- The Sketch Design can be registered as artistic work under the Copyright Act 1957;
- The Article Design can be well protected under the Designs Act (under class 02, 03, 05 of Third Schedule of Designs Rules, 2000);
- Colour Combinations can also be protected under Copyright Act, 1957;
- Fabric or any other material used in the Article can also be protected under Designs Act, 2000 and Patents Act, 1970 (if involves inventive step and is novel);
- Logo Designs can be protected under the Trademarks Act, 1999 where logo is part of design. For instance, Louis Vuitton handbag covered with a repeating pattern of the brand’s well-known LV mark.
The idea behind seeking protection of IP is not only to protect, efforts and cost of creating a design, but also to make a brand known and identifiable in the market entitling it to enjoy a certain reputation among the consumers.
Of late, Indian designers have become vigilant like foreign designers in protecting their designs and thwart attempts of copying, reproducing, printing, publishing and distribution of prints that are colourable imitations of substantial reproduction of designer’s sketch, templates, fil tracing screens etc. One such instance is the case of Ritika Ltd v Pramod Kanodia Ltd , where the plaintiff sought permanent injunction against the defendant their respective proprietors or partners, their officers, servants, agents and all others acting for an on their behalf from reproducing, printing, publishing and distributing or offering to sell prints in any form whatsoever that are a colourable imitation or substantial reproduction of the plaintiff’s drawing/sketches, templates, film tracings, screens, engravings and/or fabric designs pertaining to ‘Kulah’, ‘Ambi Bandhini’ and ‘Sangmarmar’ and/or any other prints enumerated in the plaintiff’s catalogue amounting to infringement of the plaintiff’s copyright.
The IP for Fashion Industry in countries like USA, France is much more advanced than India. There a fashion article can be protected under “trade dress”. Trade dress is the concept originally limited to packaging of product but expanded by the courts to include designs of the products too.
Where the protection of ideas and designs of Fashion Industry is well needed to prevent the ever rising number of cases of infringement, there is no specific IP protection to protect the true essence of any fashion item in India. For the time being, better protection can be achieved by combination of two or more IPs while seeking protection. However this approach would not render results unless people are motivated to buy genuine fashion articles and discourage piracy.
 2002 (24) PTC 572