FASHION, INTELLECTUAL PROPERTY And LEGAL ISSUES - Tejaswita Sachdeva The forever innovative, competitive and fiercely expanding

business of fashion that results in huge profits, thrives on high investment of creative capital and continuously invites legal hassles which include issues arising out of trade laws, labour laws and intellectual property laws. In essence fashion is all about creative genius and innovation and therefore it becomes relevant to discuss its relation with intellectual property and need for protection. Intellectual property is any idea or design created which is protected against copying by law. This being the law, however, piracy is rampant in the fashion world and it is often argued that it is a boon for the industry. Design copying is widely accepted in guise of inspiration or homage. Knock offs of high fashion garments can be seen almost everywhere in the local markets. The problem of counterfeiting is on rise. But this scenario is fast changing with an increasing number of companies and designers seeking protection for their products. The IP regime traditionally consists of trademarks, copyrights and patents. Trademark infringement cases are on rise with brands fiercely protecting their IP. From the signature Burberry checks, red outsole for Loubartin shoes to the logo “LV” for Lois Vuitton lend a unique identity to their brand and therefore need protection. In this case, protection which is extended to the brand logo, may not necessarily include the product. Example, the logo of Louis Vuitton on its bag is protected but the bag itself is not. However if logo becomes a part of the design then such design is protected. Injunctions have been granted in cases where there is least likelyhood of confusion between products. This is supported by decision of Delhi high court in Daimler v. Hybo Hindustan where defendents were not allowed to use “BENZ” on undergarments even though automobiles and undergarments are least likely to be mixed up. Trade dress which is the overall packaging of the product can also be protected in cases where it acquires a secondary meaning. Copyright issues plague the industry with infringements including design and print reproduction. While applied art (jewellery design and pattern on clothes) is protected, useful articles (cloth designs) are not. Where the aesthetic element can be severed from functional elements, such is protectable under copyright law. There is also a tussle between copyright protection and design protection. It was bought out in case of Tahiliani designs. Mass production takes away copyright protection. In order to be protected under design protection, the ornamental feature of design has to be novel. When design is a direct result of functionality, it is not protected. In India, traditional embroideries like Kasuti and Kutch embroidery are also protected. This is done under GI registrations. Therefore IP rights with respect to fashion are not only about protection from copying but also help in identification of content creator thereby helping brands, manufacturers, marketers with skyrocketing businesses to manage, protect and strengthen their primary source of competitive advantage.

IT HAS BEEN WRITTEN AS A GENERAL EXPLAINATION FOR AMATUERS. IT IS AN UNPUBLISHED ONE AND CONTAINS AUTHORS PERSONAL VIEWS .PS: THE ARTICLE IS A GENERAL ONE AND DOES NOT HAVE ANY REFERENCE.

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