WHEN FASHION MET LAW

In the case of H&M; Hennes & Mauritz Ab &Anr v. HM Megabrands Pvt. Ltd. &Ors is based on the point of having a similar trademark to that of another brand. The Swedish company had become popular and successful, especially with the young girls. The Plaintiff, in this case had a well-known trademark, and would have lost its reputation at the hands of the Defendant who started marketing apparels under this name. The plaintiff due to having a similar trademark in the same business circle would have caused the consumers to be misled. The website of the defendants, http://www.hmmegabrands was found to be offering similar services and goods as the plaintiffs. Hence, the Plaintiffs filed a suit for trademark infringement and passing off. The Ld. Single Judge after hearing both the parties, ruled in favour of the Plaintiff, stating that the Defendants discontinue the business as they were earning goodwill wrongfully, and restrained the defendant from using their trademark in any manner .

A sui generis requirement for fashion law arises because the protection to be offered in the fashion industry is far-ranging and not limited to one facet of intellectual property (“IP”) such as patents, trademarks or copyrights . The fashion industry is one massive industry in the current time that strives in the competitive global space despite with minimum legal protection for its creative designs and products. The fashion industry comprises of designing, manufacturing, trading of clothes or accessories with new and unique designs. These designs are the fruits of intellectual labour of someone or the other and therefore should be liable to be protected by the IPR . According to me, there is no woman in India who is not crazy about a GUCCI bag or a lehenga designed by Sabyasachi Mukherjee or Manish Malhotra. Or a man not getting excited by seeing Rolex wrist-watch. In the fashion industry, products of famous brands are being counterfeited. If a buyer is caught with a counterfeit product in France, then they are held liable criminally whereas sadly in India there is no law for it.

IPR IN FASHION INDUSTRY

IPR and fashion are wedded to each other. The creators tend to steal someone’s design or idea in the name of getting inspired which is illegal. Fashion law clients include designers, fashion houses, distributors, manufacturers, modelling agencies, retailers, and photographers. As a product of human intellect and creativity, fashion design is an apt subject matter for IPR protection without any iota of doubt. The proponents of IPR protection for fashion design acknowledge that in the absence of IPR protection, copyists will free-ride on the efforts of creators, discouraging future investments in new inventions and creations. In the present Article, the various regulations of IPR act as a boon to the struggling Indian Fashion Industry so that the workers can get recognition to their true creativity and hard work.

COPYRIGHT ACT, 1957

Copyright law gives creators of original material, the exclusive right to further develop them for a given amount of time, at which point the copyrighted item becomes public domain. In India, copyright protection, under the Copyright Act, 1957 exists for a period of lifetime of the artist and an additional 60 years after he passes away. One item from the fashion industry that receives copyright protection is jewellery even though it has its physical function to be worn in the real world because it has got miniature sculptures, and sculptures are art, and therefore, art is copyright . The registration of a work under Copyright Act is time consuming as it takes 2-3 months.

Section 2 (c) (iii) of the Indian Copyright Act is a broad provision which protects “any other work of artistic craftsmanship”, covering accessories as well as garments. Section 15 (1) of the Copyright Act says that copyright protection shall not subsist in any design which is registered under the Designs Act, 2000 and Section 15(2) of the Act states that, a design which is capable of being registered under the Designs Act but is not so registered, shall get copyright protection, however such protection shall cease when the said design has been reproduced more than 50 times.

In case of Ritika Private Limited v. Biba Apparels Private Limited , the plaintiff had filed the suit claiming copyright in various drawings and sketches which are created/ printed on garments by the plaintiff for dresses being sold under the trade name RITU KUMAR. The plaintiff claims to be the first owner of the copyright in all the products of the plaintiff’s company created from the sketches, drawings, designs, etc. thus, the plaintiff bought a suit against the defendant seeking an injunction restraining the defendants from reproducing, printing, publishing, selling or offering etc., prints or garments which are a colourable imitation or substantial reproduction of the plaintiff’s prints and garments.

It is to be noted that the Plaintiff’s designs were not registered under the Designs Act, 2000.The Defendants urged the issue for dismissal of the suit as per the provisions of Sec. 15(2) of the Indian Copyright Act, 1957 – where once a copyright in a design is 6 applied to an article by an industrial process for more than 50 times, ownership of the copyright ceases. The issue here is whether, once the copyrighted works of the plaintiff are applied for making of dresses, and the production of dresses exceeds 50 in number, whether the plaintiff loses the ownership of copyright works, inasmuch as, the copyright works of the plaintiff are capable of being registered as designs under the Designs Act, but the plaintiff has not secured registrations of the sketches, drawings, designs under the Designs Act.

In the present case it clearly stated that if the design is not registered under the Designs Act, the design will lose its copyright protection under the Indian Copyright Act and the copyright will subsist only till the threshold limit of application of a copyright to an article by an industrial process is up to 50 times in number and once that limit is crossed, the design loses protection as a copyrighted work under the Indian Copyright Act. Further, it was noted from the facts that, the defendant is creating dresses or creating articles by an industrial means and process by application of the design or drawing or sketch and the defendant is not as it is affixing a print taken from the copyrighted work of the plaintiff as a print on a dress created by the defendant. Thus, it was found that there was no violation of a copyright of the plaintiff under the Indian Copyright Act, 1957 and was neither entitled to design protection.

THE DESIGN ACT, 2000

Under Indian Law, when an artisan seeks exclusive protection for his work then he should register it under the Design Act, 2000. For a design pattern to qualify, it must meet three basic tests viz the invention shall not previously exist, it must be novel, secondly, the invention must be non-obvious, which means that the invention must be a significant improvement to existing technology, thirdly, the proposed invention must be useful, thus, it shall not be used for an illegal or immoral purpose. Under the Designs Act, 2000 a design has to be registered with the Controller General. The Design Act, 2000 gives a monopoly right to the owner of the artistic work for a period of 10 years and he can further extend it for a period of 5 years.

According to Section 2(d) “design” means only the features of shape, configuration, pattern, ornament or composition of lines or colours applied to any article whether in two dimensional or three dimensional or in both forms, by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye; but does not include any mode or principle of construction or anything which is in substance a mere mechanical device, and does not include any trade mark as defined in clause (v) of sub-section (1) of section 2 of the Trade and Merchandise Marks Act, 1958 (43 of 1958) or property mark as defined in section 479 of the Indian Penal Code (45 of 1860) or any artistic work as defined in clause (c) of section 2 of the Copyright Act, 1957.

From the perspective of fashion industry, the Act does not protect the entire garment as a whole; rather, it only protects the particular/individual aspects like shape, pattern, colour etc. of the garment. Moreover, to be protected under the act, these particular aspects must not only satisfy the definition of “design” as provided under the Act but must also be registered under the Act.

In EICHER GOODEARTH PVT. LTD. Vs. KRISHNA MEHTA AND ORS , the Plaintiff (Good Earth) in this case have registered designs for the motifs, logos, patterns of Serai, Periyar, Vrindavan, Lotus, Bali Mynah, Rose Princess and Falcon on products. Good Earth had over 100 design applications in India. Over the years, they had become a well-known brand, not only in India but also in other countries like Singapore, Turkey and Nepal. On conducting a search of the design database, the plaintiff found that the defendants (India Circus – Krishna Mehta), who was an employee of Good Earth as well as a part of the creative team that designed a number of designs was selling the designs under the brand name India Circus, a company which was founded by him.

Good Earth had alleged that the Defendant had knowledge of the designs made by their company and the website of Krishna Mehta had designs that were deriving inspiration from household things, surroundings and even Bollywood. The Plaintiff stressed on the fact that the Defendant’s team created the Periyar design and that he was well aware of its originality. On the other hand, the defendants stated that the Plaintiff’s work was an inspired work of art and not novel and for this reason, they cannot claim ownership under the law of designs. They also stated that the works of the Plaintiff are pre-known, pre-published and in public domain for many centuries and therefore aren’t new or novel. The Court concurred with the arguments of the Plaintiff and held that they satisfied the test for passing-off and that the acts of the Defendant were causing confusion in the minds of the consumers. The court restricted the Defendants from using the said designs.

TRADEMARK ACT, 1999

A trademark is any word, name, symbol, or design, or any combination thereof, used in commerce to identify and distinguish the goods of one manufacturer or seller from those of another and to indicate the source of the goods. The Trade Marks Act, 1999, under Section 2(Zb) of the Act, defines trademark as mark capable of being represented graphically and distinguishing the goods and services of one person from another and may include the shape of goods, their packaging and combination of colours. According to Section 2 (m) a mark can include a device, brand, heading, label, ticket, name, signature, word, and letter, numerical, shape of goods, packaging or combination of colours or any such combinations. The utility of trademark law, however, in protecting fashion designs, as distinct from fashion brands, is quite limited.

A trademark is useful for a fashion design only in that situation when it is visibly integrated into design to such an extent that it becomes an element of the design. There is a growing tendency among fashion designers to incorporate a trademarked logo on the outside of the garment at the time of creation of clothing and accessory designs. Trademarks are used to distinguish products and brands from one another, and can play a pivotal role in protecting the Designer’s reputation. In India, the registration of trademark exists for 10 years and is renewable every 10 years. Trade Marks Designers can use trade mark law to protect not only logos and brand names, but also other distinct features of a product such as size, shape, colour or colour combinations, texture, graphics or even particular sales techniques.

In the case of Louis Vuitton Malletier v. Atul Jaggi and another , the Delhi High Court restrained the defendants for infringing and passing off their famous trademarks “LOUIS VUITTION” and “LV” by using identical marks and granted damages. The plaintiff claims to be a company incorporated under the laws of France deriving its name from its founder, Louis Vuitton, who, started creating leather luggage, bags and accessories in Paris, who gained immense popularity due to company’s craftsmanship and inventive designs. The plaintiff claims that that in addition to the use of the name Louis Vuitton as a trademark, the initials of “Louis Vuitton”, namely “LV”; had also been used as a trademark by the plaintiff since 1890. The Plaintiff submits that Defendants who are the proprietors of Purse Collection located at 6/64, W.E.A. Ajmal Khan Road, Karol Bagh and 23/24, Fruit Market, Ajmal Khan Road, Karol Bagh; were involved in counterfeiting the plaintiff’s products bearing the plaintiff’s exclusive trademarks, i.e.Louis Vuitton, the LV logo and the Toile monogram pattern. The defendants are directed to destroy the goods seized by the Local Commissioner on a date to be intimated to the plaintiff in its presence or in the presence of plaintiff’s representative.

PATENTS ACT, 1970

Patent is an exclusive right conferred by patent office on an inventor to exploit his invention subject to the provisions of Patent Act, 1970 under section 2(1) (m). In the fashion industry, artistic creations cannot be patented as it is based on the technical and innovative aspect, but the technology used for making these designs or creation of this artistic work can be patented. Though patent inventions can be extremely costly and time consuming it can be used to secure an innovation which can be used in Fashion industry for a long period of time and it will not get outdated if the innovation is novel and the process can be repeated every year in the industry.

Patent invention grants protection for 14 years for design patent and 20 years for utility patent from the filing date and after the protection ends it falls under public domain and anyone can commercially exploit it without infringing the patent. In 2016 Louis Vuitton has been granted 6 Design Patents followed by Bottega Venetta who has been granted three and Balenciaga have been granted two.

Novozymes, a Danish biotech company specializing in enzymes and microorganisms, pioneered the use of enzymes in the treatment of fabrics. The Company developed and patented a technology for the treatment of “stone washed’ denim jeans through these enzymes called cellulase to give the fabric a worn look and within 3 years most of the denim companies were using the technology under the license from Novozymes .

PRESENT SCENARIO

In the current scenario, the Indian Fashion designers have become more cautious about their IP and are taking steps against those who infringe their designs. The Fashion Foundation of India (FFI) has played a major role to protect IP rights against rampant copying, referencing and inspiration. The Fashion industry in India is diversified in to the sectors like Main Stream brands such as Zara, H&M, Mango, Levi’s, FCUK, Luxury segment houses such as Gucci, Burberry, Prada, Dolce & Gabbana, Premier Fashion houses such as Hermes, Louis Vuitton, Chanel, Rolex. Indian designers now hold international reputation such as Sabyasachi Mukherjee, Manish Malhotra, Tarun Tahiliani, Masaba Gupta, Ritu Kumar Rohit Bal, Abu Jani and Sandeep Khosla, Wendell Rodricks, Neeta Lulla, Kanika Goyal, Manish Arora etc.

Due to the pandemic, everyone is confined to the four walls of their homes but that does not mean that work should be stopped. A new concept called ‘FaceTime Shoots’ along with Virtual Reality (“VR”) and Artificial Intelligence has come to the rescue. Brands like Tommy Hilfiger in collaboration with Zendaya was displayed through an immersive VR experience. Earlier, only top celebrities would be brand ambassadors for a particular brand but due to the rise of new-age YouTubers they are also igning on brand ambassador deals.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

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The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.

If you would also like to contribute to my website, then do share your articles or poems at adv.aishwaryasandeep@gmail.com

We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs.

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