Pankaja Balaji looks at how Intellectual Property Rights (IPR) can be applied to the fashion industry and why IPR is necessary.
Decoding how Intellectual Property Rights can be applied to fashion
Creativity and innovation are at the core of fashion. That is its business model to create new designs and clothing every season. Yet, the Indian fashion industry is not adequately protecting itself from plagiarism. It can be said that the very creativity that defines fashion is a hindrance to its protection. Where can one designer draw a line and say ‘this is my original product, while that is not’? And, if being a trend setter is the dream of every fashion designer, why stop people from replicating it?
It’s only since the last few years that designers in India have begun copyrighting their garments, designs and clothing lines. This delay, compared to the international market, can be attributed to the lack of awareness of both; the need and the law.
In India, fashion items can be protected under two laws: Design Act, 2000, and Copyright Act, 1957. The overlaps between the two can and does lead to confusion, but at the basic level the implications are that designs registered under the Design Act, 2000 receive protection only by that law, which means that registered designs are protected by copyright for ten years from the date of registration with a possibility of a further five year extension. During this time, any counterfeit or sale of counterfeit is punishable by law.
Whereas under the Copyright Act, 1957, the registered copyright exists for the lifetime of the artist, and for another 60 years after that. However, if a design is registered under the Design Act, it cannot be protected by the Copyright Act. Interestingly, if a design that could be protected under the Design Act was not registered under the Act, it is automatically protected under the copyright law, unless the design has been reproduced 50 times or more.
The obvious query here is, why give lifetime protection for a design under the Copyright Act and for a maximum of 15 years under the Design Act? Thanks to the legal tussle between two individuals over copyright to a particular upholstery design, the Delhi High Court chose to define original artistic work versus an art work for industrial use. The former would be protected under the longer Copyright Act, where the latter would have to be registered under the Design Act.
India takes pride in being able to mass produce garments cheaply, and has gained an edge over many a textile nation in the global market.
Today, the e-commerce market with its country wide shipping and multitudes of clothes are a dream come true for many. However, the flip side to this volume game is the unregulated market of counterfeit clothing.
If you know where to look, you will find any and every designer garment from across the various fashion seasons available for a price. Unfortunately, this is not confined to the small shops in the alleys of Chandini Chowk or Colaba; designers such as Rohit Bal, Manish Malhotra,
IN INDIA, FASHION ITEMS CAN BE PROTECTED UNDER TWO LAWS: DESIGN ACT, 2000 AND COPYRIGHT ACT, 1957.
Nida Mohammed, are but a few to have called out big brands for copying their work.
India is a country rich in art and craft with every state, region, town and family being able to define a distinct aesthetic sensibility and craft that is theirs alone. Respect for art or the artist is not reflected in the general populace’s refusal to pay the asking price. Handicrafts and handlooms have borne the brunt of this as consumers pay a margin of the cost for industrially replicated traditional weaves over expensive hand woven garments. This has forced local artisans to slash prices drastically to stay afloat and even forced the younger generations to abandon the family craft for daily wage work.
There are those who are willing to pay the price for owning a thing of beauty rich in culture and art. But as Sabyasachi Mukherjee articulated in a recent interview with Vogue, “Imagine paying full price for an outfit, only to be seated next to another who is wearing a copy for nearly one third of the price.” On being asked by the reporter Rujuta Vaidya about the high cost of the designer garments, he replied, “All people see is the fabric and embroidery, and start counting. Design needs to be incentivised. The product pays for the business and all the multiple rejections that go into making the perfect garment,” he says.
Just as design needs to be incentivised, so does the immense work that goes into making it. The Government’s Handloom mark serves to help consumers distinguish the painstakingly hand woven fabrics and garments from the mass produced cloth. This is a good example of how trademarks can help consumers and artists.
A trademark is when a word, name, symbol, design, colour or a combination of these is used to identify a product as belonging to a single person or organisations. A few examples are Charagh Din, Raymond as well as the Government’s Handloom and Silk marks. These mark functions are differentiators between genuine and counterfeit goods.
Trademarks need not always be an add on, for instance, Louis Vuitton, Yves Saint Lauren, Dolce and Gabbana, have all used their trademark as part of their design. Burberry, on the other hand, has trademarked its check pattern.
Internationally, trademarks can be extended to trade dress, i.e., the total image of a product from size to colour combination. This is, in fact, very intuitive, since in most cases, those who are well versed with an artist’s work can identify their garment by the feel of the texture, the manner of colour mixing and even the stitching. Thus a designer can protect their clothing line by virtue of its uniqueness.
It is important to point out here how difficult it is to identify something as being truly unique and therefore a trademark. Going back to the example of the local weaver, the vast majority of Indians are able, at a glance, to distinguish between a Kota and Bengal cotton or between a Paithani and a Kanchipuram due to its unique style.
Can you trademark any garment that uses these techniques? We might need to wait for another few people to go to court before we get some clarity. According to Eashan Ghosh, an intellectual property rights advocate interviewed by The Quint, “It’s about what is available in the public domain, and what is not… for example, there is a Jodhpuri suit, which is available in the public domain. But the pattern you add to it is exclusive to your label. And that’s a pretty clear distinction. You would have to demonstrate that you have added originality to a piece.”
There is a line between permissible copying under the law, and piracy. The thickness or thinness of the line depends on the judge, the case and the time. What is the difference between 60 per cent infringement and 30 per cent? And is there a point if the copied items are already on sale?
All of these and more will hopefully be settled as more and more designers begin to protect their work.
In a legal blog by Anubhav Pandey, he explains another way in which IPR can be protected. He talks about the case of Dior copying the hand block print created by People Tree, a clothing collective, in collaboration with local artisans from a region in Rajasthan. While being an obvious violation of People Tree’s IP, legally the use of the hand block print in itself was not piracy. However, the collaboration between the various parties to create it made it impossible to register under the Trademarks Act, Design Act or Copyright Act.
What could have helped was the use of Geographical Indication of Goods Act. An initiative by the Government of India, it means that goods originating from a specific geographical area are protected under IP as originating from that area. However, since this was not the case with People Tree, Dior was able to use the loophole.
Thus, awareness is an essential aspect of the fight to protect IP. The need is obvious; for a brand to exist there must be an identity unique to it, and without IPR that is not possible.