Fashioning Legal Threads: 5 Essential Insights into Intellectual Property Rights in the Fashion Industry
Intellectual property (IP) comprises intangible products of human creativity and intellect, safeguarded by a set of regulations known as intellectual property rights. These rights encompass copyright, patents, trademarks, trade dress, trade secrets, and more. The fashion industry’s reliance on and utilization of intellectual property are progressively increasing.
With its involvement in the creation, production, and distribution of garments, accessories, and other items, the fashion industry stands as a vast market. The revenue of Global appeal market is forecasted to grow around $1.7 Trillion Dollars in 2023 which was $1.5 Trillion Dollars in 2022. The continuous emergence of global fashion trends necessitates protection against unauthorized replication for personal gain.
Registering one’s intellectual property becomes crucial as it serves as a barrier against product duplication or imitation. Amidst a market filled with counterfeit goods, IP registration becomes a means of acknowledging and honoring designers and manufacturers for their original creations.
RELEVANCE OF INTELLECTUAL PROPERTY PROTECTION IN FASHION INDUSTRY
Within the fashion industry, numerous individuals create products akin to an original fashion design and market them with a distinct label at a lower price point. If the similarity is close enough to mislead a designer, legal recourse may be pursued. Counterfeiting involves producing an exact replica of an original product, typically sold at a reduced price, thereby infringing upon the original designer’s trademark.
Developing and under developed countries such as India, China, Vietnam, and South African nations are the biggest market of these fake products due to their low purchasing power and Globalisation. This is illegal, prompting major brands like Nike, Adidas, Calvin Klein, Gucci, Prada and others to invest millions in legal battles against counterfeiters who replicate their unique designs and products.
Protecting original work becomes imperative as, in a market where novel concepts surface, designers and manufacturers often resort to imitation rather than creating their own authentic products. Intellectual property rights significantly enhance a brand’s reputation, fostering trust and authenticity among consumers. In the fiercely competitive landscape of the fashion industry, intellectual property rights stand as its foundational support.
WHAT ARE THE TYPES OF IPR INVOLVED IN FASHION INDUSTRY
Intellectual Property Rights are bundle of rights that protect the creation of Human intelligence used for commercial benefits. This bundle includes:-
- Trademark
- Copyright
- Design
- Patent
All these above rights make the foundation for the protection and identification of the Brand in Fashion Industry. We shall now discuss these rights individually and see what could be the best suitable course of action to protect your Brand from counterfeit.
- TRADEMARK
Fashion houses, regardless of their size, highly esteem their brand equity. They forge strong connections with their clientele through brand names and zealously safeguard them via trademark registration. Trademarks hold equal significance for small or emerging companies in the fashion industry.
Trademarks serve as distinct identifiers, separating the products or services of one company from those offered by others. Their origins trace back to ancient times, where craftsmen would imprint their unique signature or “mark” onto their goods, distinguishing their craftsmanship from others in the market.
The famous story of world’s biggest fashion brand that is NIKE, who paid a mere $35 to the designer of their Renowned Swoosh Logo which is now worth whooping $156 Billion in Market. Their name is now a synonym to Luxury and holds a higher pedestrian when it comes to Fashion Industry.
But this also poses them threat from the fake and counterfeit market which produce their copy and sell them at a very cheap price. The estimated black market value of the top 25 counterfeit sneakers of Nike is more than $3.7 million in US alone, that is just a tip of the Ice burg, there is a huge market which is yet to be traced, most of which is produced in China.
For brands like Nike it is easy to trace and prosecute the infringer due to their resources, money and legal team, but for a small enterprise who has just stepped their feet in the Trillion dollar fashion industry A Trademark Registration becomes very crucial step to tackle these infringers and claim for damages and compensation.
In India, the Trademark Act 1999 deals with this area of IPR. Section 2(zb) of the act defines a trademark as “a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colors”.
By effectively utilizing current trademark regulations, businesses can take legal measures against entities that have utilized similar marks for their commercial endeavors. One can register their Brand name, Logo, Packaging, Shape of Goods as a Trademark to protect their creation and be a sole owner of the creation and utilize it in commerce. Trademark protection is given for a period of 10 years, after which it can be renewed.
- COPYRIGHT
Copyright is a bundle of rights given to Artists, Musicians, Photographers, Actors, Writers. As per the Indian Copyright act, 1957, section 13 provides the subject matter and essentials for Copyright.
As per the section, the copyright shall subsist in the classes of works which are
(a) original literary, dramatic, musical and artistic works;
(b) cinematograph films; and
(c) sound recording
Copyright holds significant relevance in the fashion industry, safeguarding various creative elements and ensuring legal protection for designers and fashion houses. While fashion primarily focuses on wearable items, copyright extends its protection to various aspects within this industry.
Firstly, copyright protects original creative works within fashion, such as textile designs, fabric prints, sketches, and patterns. These creative expressions, whether hand-drawn or digitally created, are subject to copyright protection. Designers invest considerable effort and creativity in producing these elements, and copyright ensures that their work cannot be directly copied or replicated without permission.
Moreover, fashion also involves artistic endeavors in the form of runway shows, photographs, and editorial spreads. Copyright covers these artistic expressions, preserving the rights of photographers, models, and stylists who contribute to the visual storytelling and branding within the fashion realm.
Under the Copyright Act, the artistic work related to printings/designs/patterns etched or imprinted on textiles/fabrics/apparel/garments are protected Section 2(c) of the Copyright Act of 1957 provides protection for the artistic design work. It includes a painting, a sculpture, a sketch, or any other artistic creation. It protects works that are unique in some way.
For Literary, Dramatic, Musical, and Artistic Works copyright lasts for the lifetime of the author plus 60 years. The duration for Photographic Works of copyright in India is 60 years from the year of publication.
- DESIGN
At the core of the fashion industry lie innovative and novel creations. Among the array of intellectual property mechanisms, safeguarding industrial designs—commonly known as designs—stands out as particularly pertinent to this field. When a design is registered, it empowers the owner to prevent any unauthorized use of its fresh or distinctive visual or ornamental characteristics.
These attributes might pertain to a physical attribute like the silhouette of a hat or a surface feature like a pattern on fabric, or design of a New Bag, Shoes etc.
Under section 2(d) of the design act of 2000 in India, the term “designs” is defined as features of shape, configuration, pattern, ornament, or composition of lines or colours applied to any object by any industrial technique or means. Any article that is either two-dimensional or three-dimensional may use a design under the provisions of this section.
There are some prohibitions under the Indian law with regard to Design which one must be familiar with before applying for Design registration. Section 4 of the Act provides prohibition of registration of certain designs, and states that, a design which
(a) is not new or original
(b) has been disclosed to the public anywhere in India or in any other country by publication in tangible form or by use or in any other way prior to the filing date, or where applicable, the priority date of the application for registration
(c) is not significantly distinguishable from known designs or combination of known designs;
(d) comprises or contains scandalous or obscene matter, shall not be registered.
The words ‘new or original’ mean that the design which has been registered has not been published anywhere or it has not been made known to the public. It had been invented for the first time or it has not been reproduced by anyone; Bharat Glass Tube Ltd. v. Gopal Glass Works Ltd ., 2008 (10) SCC 657.
Therefore, the designs act guarantees the protection or registration of textile designs that may be purely aesthetic in nature. The duration for protection of Design is 10 years.
- PATENT
Patents might not be the first thought associated with the fashion sector, but they play a crucial role in driving innovation within this industry. Technical advancements can significantly propel a fashion enterprise beyond its competitors.
A collection of patents could showcase expertise in developing groundbreaking fabrics that resist wrinkles, offer enhanced softness, or provide superior weather resilience, among other advancements. This array of patents has the potential to allure potential business collaborators or investors, highlighting a brand’s innovative edge.
A patent stands as a unique privilege bestowed upon an invention, be it a product or a process, offering a fresh approach to accomplishing a task or presenting an innovative solution to a problem. Generally, patents safeguard technical breakthroughs that exhibit genuine novelty and uniqueness. Consequently, when considering technology in fashion or the broader fashion industry, patents might not immediately emerge as a commonly associated intellectual property tool.
But there are several instances where Patent becomes useful in Fashion industry. For instance, the Biodegradable Polyester fabric developed by Mango Materials, is a form of biodegradable polyester. The material can be biodegraded in many environments, including landfills, wastewater treatment plants, and the oceans.
Heating Gloves and vests are also a great example for technological improvement in Fashion. The Nike’s self tying shoes which were in the News. Smart textiles are also new thing in the news as well, their market was valued at $878.9 million in 2018 and is forecast to expand at a CAGR of 31.29% between 2021-2026.
People can protect the Process of the developing these fabric or can patent the product itself. A patent protection is granted for a period of 20 years, after which it goes into the public domain.
There are patentability criteria that one must follow in India before applying for a patent application:
- An invention must be new.
- It must involve an inventive step.
- Capable of being used in industries i.e. industrial application.
For fashion brands, especially small enterprises, it is essential to register their intellectual property under the appropriate laws. This ensures they can safely monopolize their business and prevent others from exploiting their reputation and goodwill through counterfeiting and copying their products. Additionally, it involves licensing and franchising their products and creations to other brands for significant consideration. Plead Masters provides comprehensive services to facilitate this process, protecting your brand and maximizing its value.
