JAMIA

HAMDARD

SCHOOL OF LAW
BA.LL.B (5th SEMESTER)
TRANSFER OF PROPERTY LAW
ASSIGNMENT ON THE TOPIC
Fashion Law and its Interventions
with Intellectual Property.

Submitted To: Adv. Nazish Fatima

Submitted By: Murtaza Ahmad Raina
Enrolment: 2021-342-071
ACKNOWLEDGEMENT

My sincere efforts have made me to accomplish the task of completing this assignment.
However, it is not possible to prepare this assignment without the assistance and
encouragement of other people. I would also like to extend my sincere and heartfelt
obligation towards all the personages who helped me in this endeavour. Without their active
guidance, help, co-operation and encouragement, I would not have made headway in this
project.

I am also very thankful to our professor Adv. Nazish Fatima for her continuous guidance and
support.

I extend my gratitude to JAMIA HAMDARD for giving me this opportunity to work on this
assignment.

At last, I also want to acknowledge my friends and family members who have always
supported me morally as well as economically.

Thanks to all.
Introduction
We all are fascinated by the word, “Fashion”. It is a major part of our lives and people are more
inclined towards buying products of brand having a great name in the market. In India, the fashion
industry is growing day by day and it has seen a major expansion in the last decade. The growth in
domestic designers can be seen in the increase number of large fashion events in the country. India
has a rich taste in traditional fashion, jewelries and native costumes which can be seen in every
state. On one hand, India is seeing a major boost in its economy by having an increase contribution
in the fashion industry and on the other, some are counterfeiting the products of the famous brands
resulting into a huge impact on the owners of these brands. In India, the fashion industry is given
protection under the Intellectual Property Laws such as Designs Act, 2000, Trademark Act, Patent
Act, Copyright Act, Geographical Indication of Goods Act. Unlike other countries like France,
where the buyers who buys these copied or counterfeit items are criminally liable, India don’t have
such types of laws yet. The owners of the brands can seek permanent injunction or can compensate
for the losses they
have been incurred.

India is a land of diverse cultures, and clothes speak a lot about one’s culture. The Indian apparel
industry generates trillions of dollars and provides employment to many people. It’s a fascinating
combination of aesthetics and art. Clothes are no longer limited to functional usage but have
transgressed boundaries to become artistic expressions. The artistic or the innovative component is
what separates the past from the current in fashion. The abundance of ‘artistic factors’ over ‘utility
factors’ makes IPR protection predominantly important in the fashion industry

BACKGROUND OF FASHION LAW

Fashion law is an area of law that deals with the various segments of intellectual property rights
such as Copyright, patent, trademarks, trade designs etc. It was in the year 2008, Susan Scafidi, the
United States law professor for the first time offer a course in fashion law and after that this subject
of fashion law has been recognized as a distinct field in the sphere of law. Although a highly
focused special fashion law is quickly growing field with the advancement of new technologies.
Several American as well as European schools have dedicated programs related to the fashion law.
But if we look to the other side, we will find Paris, France as the historical capital of fashion in the
world. Fashion trend formed an important aspect in the French lifestyles in the 17th century. The
trend has also witnessed circulations of cheaper versions of fabrics. The changes were brought in
the year 1920 when fashion was easier to copy and more accessible. Copying continued to be the
biggest problem in the field of fashion. The copyright extensions find its roots in the English and
French Copyright system that protects the fashion designs. However the patent law was not
designed to protect the fashion and its culture. Designers need a system to protect the designs
before and after being made public where imitations would seep into the market under cutting the
designer’s price and creating a backward bending curve as far as the demand of designer’s apparel
was concerned.
What Are Intellectual Property Rights?

Intellectual property rights are a set of legal powers provided to a particular individual or an
inventor who has created a design. Using these intellectual property rights, one can prevent
plagiarism or copying by competitors for a predetermined period.
The applicant or the inventor can use their creation without any hindrance. It is crucial to avail
permission from the owner of a particular creative to use it.

Types of Intellectual Property Rights

There are 5 major types of intellectual property rights in India namely.

 Patents
 Trademark
 Copyright
 Industrial design
 Geographical indication
In some regions plant variety rights, trade dress, and trade secrets are also provided. Each of the
intellectual property types is used in different scenarios.

The Fashion Industry and Intellectual Property Rights in India

When it comes to the fashion industry, intellectual property rights are paramount. Fashion, an
expressive way of art, is highly dynamic and can be easily counterfeited in the highly competitive
market. IP’s like registration of trademark provide complete protection from copying multiple
designs in the fashion industry.

Trademark law has one of the major impacts on the fashion industry. Brands like Ralph Lauren and
Calvin Klein cash in on their brand values, and a trademark registration is of paramount
requirement.

It protect the designs made by various fashion designers under multiple categories. Relevant IP
rights can be used per the requirement to safeguard the fashion industry. As previously discussed,
These rights in India protect multiple fashion designers under the following three Acts.

Legal Provisons relating to this Industry

IPR Law in India provides protection to the fashion design under three legislations.

The Design Act of 2000

This Act is drafted to protect an object’s non-functional aspects, including visual appeal. Under this
Act, one can protect a particular shape, configuration, pattern, or composition of colors in two-
dimensional and three-dimensional forms. The particularly registered design can be protected for 15
years.
In case of any piracy of the registered design, the owner can initiate legal action against the
infringer and collect a contract debt of ₹25000. They can also initiate legal action in case any harm
to the reputation occurs.
The Indian Copyright Act of 1957

Under the Design Act of 2000, fashion designs will automatically be protected by copyright. The
Copyright Act of 1957 protects designs not registered under the Act. Under the Copyright Act of
1957, they are entitled to 15 years of protection if they meet the artistic work criteria. Section 15 of
the Copyright Act of 1957 covers the commercial and industrial use of original works for industrial
production or furnishing.
To effectively enroll your design under the Act, the following aspects must be met.
 The design has to be an original artistic work
 Make sure to carry the required documents to prove the originality of the design to register it
under the Act
 The particular garment or design derived from the creation should be applied and should
not be reproduced more than 15 times by the industrial process, by any other person or the
owner.
The Trademark Act of 1999

Making your mark in the highly competitive and dynamic fashion industry is crucial. Your fashion
business benefits from a trademark registration in this way. The top registered brands in the fashion
industry include their registered brands when designing clothing and accessories. Since the logo
now functions as part of the design, trademarks offer strong protection against imitations. In
addition, the Trade Marks Act 1999 protects trademarks that protect brand names.

Protection Under the Geographical Indications Act of 1999

A classification of items that fall under the Act’s is provided protection in the Fourth Schedule of
the Geographical Indication Act, 1999. The protection of fashion clothes through the texture and
creative worth of the fabric used to make apparel and accessories is demonstrated by the
registration of geographical indications.
FASHION PIRACY

Fashion design piracy is the unauthorized reproduction or imitation of original

fashion designs, clothing, accessories, or other fashion-related intellectual property
without the permission of the original designer or brand. This practice generally
involves copying the design, logo, or distinctive elements of a fashion product in
order to create and sell counterfeit versions that imitates the appearance of the
original product. Fashion design piracy is considered a form of intellectual property
infringement and is illegal in many countries. In a Country like France, the buyers
who buys these copied or counterfeit items are held criminally liable. On the contrary
India does not have such laws.

Piracy in fashion industry generally falls into two categories i.e. Counterfeits and
Knockoffs. Thus, it is important to know the difference between the two.

Counterfeits are those unauthorised, close copies with labels, logos, or other
distinctive markings – like ‘Prado’ bags or ‘Vuiton’ scarves.2 These goods often look
very similar to the original designer products and intend to piggyback on the
reputation of the original company; but are usually of lower quality and are sold on
comparatively low prices. They are confusingly similar and are infringe to the
authentic goods trademark. It may also involve piracy in fashion design besides
piracy in logo or label of fashion brand.

Knockoffs are simply copies of another designer’s style without the infringing
trademarks; and is marketed under a different label than the original designer's at a
lower price. It aims to copy the design elements of original product so closely that it
is hardly distinguishable from the original product. Gary Assim, partner and
intellectual property specialist at London law firm Shoosmiths, noted that

“The damage actioned by knock-offs is twofold. Firstly, it robs the designer of the
proceeds from the sale of his or her product, which will often have been the result of
a considerable research and development investment. In addition, it denies the
designer the rightful recognition as the original creator

2 Emily Gyben, ‘Knockoffs and Counterfeits: What’s the Difference?(FASHIONetc, 4 April 2011)<
http://fashionetc.com/news/fashion/1346-knockoffs-counterfeits-difference> accessed
on 21 August 2023
3
‘Fashion and IP’(Chadha & Chadha IP) < https://www.candcip.com/fashion--ip> accessed on 21
August 2023
NEED TO REGISTER
Registering Intellectual property (IP) in the fashion industry is essential for the
following reasons:

• Protection of Creativity: Fashion is a highly creative and competitive industry.

Registering IP, such as trademarks, copyrights, and design patents, helps protect the
unique designs, logos, and creative elements associated with a fashion brand. This
protection prevents others from copying or imitating creations.

Brand Identity: Trademarks are crucial in establishing and maintaining brand

identity. They distinguish your brand from others in the market and can become
valuable assets over time. Registering trademarks for fashion brand's name, logo, and
other distinctive symbols helps build brand recognition and trust among consumers.

• Exclusive Rights: Registering intellectual property grants exclusive rights to use,

sell, and license the protected designs or brand elements. This exclusivity can be a
significant competitive advantage, as it prevents competitors from using one’s brand
identity or copying designs.

Legal Recourse: In case of infringement, having registered IP provides a legal

framework for pursuing legal action against infringing parties. It allows one to seek
damages, injunctions, and other remedies to protect their brand and designs.

4
‘Addressing Fashion's Intellectual Property Conundrum’ ( Business of Fashion, 26 July 2011)
<https://www.businessoffashion.com/articles/news-analysis/fashions-intellectual-
property-conundrum/> accessed on 21 August 2023
WHAT ARE THE SUBJECT MATTERS OF PROTECTION IN FASHION INDUSTRY
UNDER INTELLECTUAL PROPERTY RIGHTS?

The following articles designed by the Fashion Designer can be protected under
Intellectual Property Rights :

1. Sketch Design can be registered as ‘Artistic Work’ under the Copyright Act, 1957.

2. Colour Combinations can also be protected under Copyright Act, 1957;

3. The Article Design can be protected under the Designs Act under class 02, 03, 05, 10
and 11 of Third Schedule of Designs Rules, 2000.
4. Fabric or any other material used in the Article can 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. e.g. Louis Vuitton handbag covered with a repeating pattern of
the brand’s well- known LV mark.

FASHION INDUSTRY AND COPYRIGHT

Copyright is a bundle of exclusive rights which are given by the law to the creators of
original works. It is a form of intellectual property protection granted by law. Copyright laws
protect the legal rights of the creator of an ‘original work’ by preventing others from
reproducing the work in any other way.

It somewhat plays a limited and complex role in the fashion industry compared to other
creative fields like literature, music, or film. The primarily reason being it involves functional
and items like clothing and accessories, rather than purely artistic expressions.

It is to be noted that the Copyright Act and Designs Act overlap each other on the issue of
design protection. A fashion design may get copyright protection if:

 A fashion design which is capable of being registered as “design” under the Designs
Act, 2000 and registered as per the provisions of the Act will get copyright
protection only under the Designs Act . In this scenario, copyright in registered
fashion design will exist for a maximum period of fifteen years.
  A fashion design, which is capable of being registered as “design” under the Designs Act,
2000 but is not registered will get copyright protection under the Copyright Act, 1957.
Copyright in fashion design in this case will subsist up to 50 th reproduction by an industrial
process of the article to which design has been applied.

 Fashion design which is an original artistic work and hence not capable of being registered as
“design” under the Designs Act, 2000 will get copyright protection in the form of copyright
in original artistic work under the Copyright Act, 1957.

According to section 2(c) of the Copyright Act ,1957 “artistic work” means —
(i) a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a
photograph, whether or not any such work possesses artistic quality;
(ii) a [work of architecture]; and
(iii) any other work of artistic craftsmanship;6

The drawings of fashion apparel first came into the definition of “artistic work” came in 2008, when
the Delhi High Court held that garments and accessories as well as printed patterns and embroidery on
the fabric are “artistic works” protected under Section 2 (c) (i) of the Indian Copyright Act of 1957.7
In India, there exist inherent copyright protection in creation of a work, which means that as soon as
the work comes into existence it has copyright protection.

The term “any other work of artistic craftsmanship” in Section 2 (c) (iii) of the Indian Copyright Act
is a broad provision which includes accessories as well as garments.

The original designs of the fashion designer get protection under the Copyright Act, 1957, for the
period of ten years from the date of registration.

A fashion designer seeking to protect his/her creations under the Copyright Act, 1957,needs to prove
the following:

1) that his/her creation is an “original artistic work” within the meaning of the Copyright Act,
1957 and is not a “design” within the meaning of the Designs Act, 2000;
2) The case of Ritika Apparels vs. BIBA 8 , identifies the loopholes existing in the IPR Laws,
by which the defendant i.e. BIBA escapes from the liability. In this case, BIBA copied a design
from Ritika Apparels creation and started to sell in their own name. The plaintiff i.e. Ritika

6
Copyright Act ,1957, Section 2(c)
7
Rajesh Masrani v. Tahiliani Design Pvt. Ltd. [2008] FAO(OS) No. 393/2008
8
Ritika Apparels v. BIBA [2011] CS (OS) No. 182/ 2011, (India).
 FASHION INDUSTRY AND TRADEMARK

Section 2(zb) of Trade Mark Act, 1999 defines 'trademark' as ‘a mark which is capable of
being represented graphically and capable of distinguishing the goods or services of one
person from those of others, and may include the shape of goods or their packaging and
combinations of colours.’
In simple words, it provides protection for symbols, colour, shape, word, etc. representing
and relating to a good or a service. Trademark can be protected for a period of 10 years,
which is extendable for a period of 5 years.

India is a signatory to the Madrid Protocol under which Trademark can be applied for and
registered internationally given that it should be filed first in India.

Trademark creates a goodwill for the product, guarantees the quality of the product and
advertises it. Basically, it identifies the origin of the product and helps to distinguish it from
the copied products. Similarly, Trademark in the Fashion Industry protects brand name, logo,
or any features of the fashion attire.

In the case of Louis Vuitton Malletier vs. Atul Jaggi9, the Delhi High Court passed an order
by which the defendants were restrained from influencing and passing off the famous
trademarks, “Louis Vuitton” and “LV” by using identical marks and the plaintiff was granted
damages. It was also stated that the designers can not only protect the logos or brand names but also
distinct features of the products.

In another famous case of Christian Louboutin vs Mr. Pawan Kumar & Ors 10, the court declared in its
judgment that Christian Louboutin as a well-known mark and directed the defendants to pay a
compensation of Rs.10.7 lakhs, while they were refrained from selling counterfeited products
permanently. The red coloured sole heels of Christian Louboutin are highly famous across world.
Their shoes are famously known among celebs and therefore they are known for distinctive red
coloured sole heels which are common in their creations and are sold widely across various stores in
India, as well. The defendant i.e. Kamal footwear and Adhara steps were selling the exact same
products at a highly cheap rate thus, causing loss both to the brand name and the financial offers of
the company.

9 Louis Vuitton Malletier v. Atul Jaggi [2010] CS (OS) 1419 of 2009, (India).
FASHION AND GEOGRAPHICAL INDICATIONS

Signs used on goods that have a specific geographical origin and possess qualities,
reputation or characteristics that are essentially attributable to the place of origin are
covered under Geographical Indications.

Application for registering a good under this act requires a statement explaining how the
geographical indication affects the origin of goods and the map of the territory where the
good is originated. Protection for 10 years is granted with the option of renewing for
further 10 years.

The Fourth schedule of the GI Act provides for a classification of goods protectable
under the Act. The registration of geographical indications evidently depicts the
protection of fashion apparel vis-a-vis the texture and artistic value in the fabric used to
create apparels and accessories.13

Some of the GIs that have been registered in respect of textiles in India:

 Pochampalli saree from Andhra Pradesh

 Mysore Silk, Molakalmuru Saree, Navalgund Durries from Karnataka,

 Muga Silk from Assam,

 Arani Silk, Kovai Cora Cotton, Salem Silk , Kanjeevaram Sarees from Tamil Nadu,

 Nakshi Kantha, Solapur Terry Towel & Chaddar, Paithani Saree & Fabrics
from Maharashtra,

 Bhagalpur Silk from Bihar,

 Banarasi Sarees & Brocades from Uttar Pradesh,

 Phulkari from Punjab,

 Kullu Shawl from Himachal Pradesh,

 Kashmir Pashmina from Jammu & Kashmir.14

13
Fashion and IP’(Chadha & Chadha IP) < https://www.candcip.com/fashion--ip>
accessed on 17 September 2023
FASHION AND PATENT

Patent is an Intellectual Property which protects new inventions. It is an exclusive right

that protects the right of an inventor and prevents other people to unauthorizedly use and
misappropriate the registered patent. It is registered for a new invention only if the
invention is ‘novel’ and ‘original’ and is capable of ‘industrial application’.
Patent act bestows each inventor whose patent is registered with the rights, namely:
1. With respect to patent for a product, the rights to prevent third parties from using,
selling, making, importing, etc, the products without prior consent; and
2. With respect to process for which a patent is obtained, the right to prevent third
parties from using, selling, offering, etc a product obtained from that process,
without the prior consent of the original inventor.

Fashion designers are now using new technologies to manufacture products like
shoes, fabrics that includes technical superiority such as CROCS shoes, wrinkle-free
fabrics, UV-filtering textiles that are resistant to fire and water-repelling textiles.15

Back in 1987, Novozymes, a Danish Bio-Tech Company got a patent for developing
a technology where they use an enzyme called ‘Cellulase’ which removes indigo dye
from denim so as to give fabric, a worn-out look. This technology for treating
stone washed denims were widely used by other denim industry under the license
from the Novozymes. This technology for improving production methods and fabric
finishing has now been licensed worldwide. Today, the company holds more than
4,200 active patents and patent applications, and pursues a pro-active licensing
strategy to maximize royalty revenue from these IP assets.

14
Vasundhara Thakur, How can textiles be protected under GI tag?(iPleaders, 10 June 2021)<
https://blog.ipleaders.in/can-textiles-protected-gi-tag/> accessed on 17 September 2023
15
Filma V, IPR in Fashion Industry (Altacit Global, August 2015)< https://www.altacit.com/ip-
management/ipr-in-fashion-industry/> accessed on 18 September,2023
CONCLUSION

The fashion industry's interaction with Intellectual Property Rights (IPR) has become
increasingly complex and crucial in our modern world. This dynamic relationship
highlights the need for a balance between protecting the creative works of designers and
fostering innovation within the industry.
IPR serves as a fundamental pillar in protection the intellectual creations of fashion
designers, including trademarks, copyrights, and patents, which play a pivotal role in
preserving their brand identity and incentivizing innovation. Designers rely on these legal
protections to prevent unauthorized copying and counterfeiting, thereby ensuring the
integrity of their designs and the sustainability of their businesses. However, the fashion
industry also faces challenges when it comes to IPR. The rapid pace of fashion trends and
the prevalence of fast fashion have made it difficult to enforce intellectual property rights
effectively. Additionally, the appropriation of cultural and traditional designs without
proper acknowledgment or respect for their origins remains a quarrelsome issue.

The rise of digital platforms and e-commerce has further complicated the relationship
between fashion and IPR, creating opportunities for both legitimate businesses and
counterfeiters to thrive. Striking a balance between protecting intellectual property and
promoting creativity and innovation is an ongoing challenge.

In the future, as technology continues to reshape the industry, fashion brands will need to
adapt and develop new strategies for protecting their intellectual property.

REFERENCES:

1. ‘Intellectual Property in the Fashion Industry’ ( iGERENT ,8 April 2021)

< https://igerent.com/intellectual-property-fashion-industry> accessed on 20 August 2023

2. Shilpa Kumari, ‘Role Of IP In Fashion Industry’( Mondaq ,14 August 2019) <
https://www.mondaq.com/india/trademark/836648/role-of-ip-in-fashion-industry>
accessed on 23 August 2023
3. Russell D. Nugent, ‘Can I protect the appearance of my product or packaging’
(The Humphries Law Firm, 01 April 2021) < https://humphriesfirm.law/the-
patent- marking-requirement/> accessed on 21 August 2023

4. Diya Mehta, ‘Role of Intellectual Property in the Fashion Industry’(Enhelion

Blogs, 28 October,2020) < https://enhelion.com/blogs/2020/10/28/role-of-
intellectual-property- in-the-fashion-industry/> accessed on 20 September 2023