FASHION BRAND SHOW AND INTELLECTUAL PROPERTY RIGHTS
Author: Poonam, II year of B.A.,LL.B. from Punjab School of Law, Punjabi University Patiala.
INTRODUCTION
FASHION Sedulity presently has been developing day by day with the advancement in technology and people's societies. presently people choose to wear cloth bearing brand names analogous as Louis Vuitton, Prada, Guccietc.
The intellectual property laws grant exclusivity and power to the creator for gaining profitable and moral benefits. Again, these laws give remedies against fashion knock- offs and fakes, which is getting serious trouble for introducers. Having said this, let us examine how far is the legislation suitable to percolate through the fashion sedulaty to cover the intellectual property of fashion designs.
It's a common thing to hear about buying the first dupe of some well- known inventor of the fashion industry at much cheaper rates. Delhi’s Gaffar Market, Bangalore’s Brigade Road, Mumbai’s Linking Road, and Kolkata’s Vardhman request are places where one can find top- notch introducers ’ first and second duplicates at a bitsy price compared to the factual design composition. Plagiarism in this sedulity exists between the introducers as well, where there are multitudinous cases of one big design house copying the designs of another big design house. In 2017, Rohit Bal was the first inventor to get the brand over his entire collection, and subsequently, multitudinous prominent introducers followed.
WAYS TO COVER FASHION BRAND NAME IN LAWS
there are various law internationally as well as nationally to cover the fashion brands, their ensigns, design from Plagiarism analogous as THE PATENT AND DESIGN ACT, 1872, INVENTION AND DESIGN ACT. 1888, INDIAN PATENT ACT and much further.
Simply, there are various ways to cover brand names Brand Protection and Separability Brand protects “ original factory of authorship, ” including pictorial, graphic, and sculptural factory.17U.S.C.§ 102( a). It does not cover useful papers analogous as vesture. still, under the separability doctrine, “ the design of a useful composition. shall be considered a pictorial, graphic, or sculptural work ” — and therefore subject to brand — “ if, and only to the extent that, analogous design incorporates pictorial, graphic, or sculptural features that can be linked singly from, and are suitable of being independently of, the utilitarian aspects of the composition. ”17U.S.C.§ 101.
The road to brand protection of non-functional vesture designs begins with Mazerv. Stein, 74S.Ct. 460( 1954), in which the Supreme Court laid the foundation for the separability doctrine. That case involved statuettes featuring virile and womanish dancing figures. The Court held that the statuettes were copyrightable, indeed though they were intended as bases for table lights plainly useful papers which included electric wiring, sockets, and lamp tones. It recognized that “ Congress intended the compass of the brand enactment to include further than the traditional fine trades. ” Id. at 468.
In Kieselstein- Cord V. Accessories By Pearl,Inc., 632F.2 d 989( 2d.Cir. 1989), another leading case in this area, the Alternate CircuitS. Court of prayers held that an inventor's cosmetic belt buckles were subject to brand. While belt buckles generally are utilitarian objects, the court explained, “ these are not ordinary buckles; they are sculpted designs cast in precious substance — cosmetic in nature and used as jewelry is, principally for decoration. ” Id. at 990. It set up that the belt buckle patterns “ rise to the position of creative art ” and were copyrightable. Id. at 994.
The defendant — a contender who admitted copying the plaintiff’s belt buckles argued that they were not subject to brand because any artistic features were thick from the utilitarian aspects of the buckles. The court differed. While the plaintiff’s designs could not be “ physically ” separated from the belt buckles, they could be separated “ conceptually. ” Id. at 993.
Recent cases involving vesture designs have applied varying senses and reflect courts ’ struggles in this area.
1. In Galianov. Harrah’sOperating Co., 416 F.3d 411( 5thCir. 2005), the court held that the plaintiff’s outfit designs for kiosk workers were not subject to brand. It emphasized that the designs were not “ marketable independently of their utilitarian function as kiosk uniforms. '' Id. at 422.
2. In Chosun International,Inc.v. Chrisha Creations,Ltd., 413F.3 d 324( 2dCir. 2005), the court held that the plaintiff’s Halloween costumes( a captain, orangutan, and ladybug) may be subject to brand. In reversing the trial court’s redundancy it set up that certain features of the costumes analogous as heads or hands may “ bring in the observer a generality separate from that of the costume’s ‘ vesture ’ function, and that their addition to the costume was not motivated by a desire to enhance the costume’s functionality qua vesture. ” Id. at 330..
3.In Express, LLC v. Fetish Group, Inc., 424 F.Supp.2d 1211 (C.D. Cal. 2006), the court held that the design on the counterclaimant’s tunic was entitled to copyright protection “because the lace and embroidery accents are totally irrelevant to the utilitarian functions of the tunic.” Id. at 1224.
4. Jovani Fashion, LtInd. v. Fiesta Fashions, 500 Fed. Appx. 42 (2d Cir. 2012), cert. denied, 133 S.Ct. 1596 (2012), the court held that the plaintiff’s prom dress design—including decorative sequins and crystals, satin ruching at the waist, and layers of tulle on the skirt—was not copyrightable. It found that these elements were not separable because they “enhance[d] the functionality of the dress as clothing for a special occasion”; thus, their removal would “adversely affect the garment’s ability to function as a prom dress.” Id. at 44.
Against this background, Varsity Brands, a leading producer of cheerleading uniforms, took its fight for copyright protection to the Supreme Court.
PATENT
The term patent has its origin from latin word patene which means "to open" On legal parlance the patent is a legal grant of monopoly right for some fixed term to the creator of new and useful invention in return of the disclosing invention. In the fashion industry , it is also used as a way to protect the designer's way of designing clothes.
Prerequisites for Obtaining Dress Designs Patents
In this section of the blog, we have jotted down the standards laid down by the Indian patent office that must be met in order to get patent approval for an exclusive dress design:
The design should portray patentable subject matter: The patent office duly mentioned that each designed dress has to include something that can be considered patentable. The designer strives to maintain this policy by not blindly copying other designers’ ideas. The final product is consumer-ready that represents a unique representation. Other than this, three more conditions must be met by the company launching a designer dress to satisfy the patent office for obtaining the patent.
The pattern has to be novel: The designs presented before the patent granting officers are expected to be novel. In a nutshell, the designer has to be convinced that his inspiration behind the illustrative depictions gives birth to a new design.
Suppose a fashion designer has taken a fabric after drawing inspiration from some dress that was presented online; his patent proposal will not be granted because the base idea is no longer new.
Might give rise to a dilemma among the readers that whenever we are stressing the term ‘new,’ you may wonder that all-inclusive materials need to be new, but that is not the case. The result of getting prepared from knitting all the elements should produce a lovely dress that is unquestionably new.
The design is non-obvious: This is a critical concept. The applicant must ensure that the design he has brought in front of the jury represents a pattern that a proficient client familiar with the fashion trends would not consider the upheaval noticeable. It is a tricky condition as patenting is only possible when the inspiring modules are implemented in a proportion and way nobody has ever tried or thought of doing.
The patent examiner judges a dress design’s nonobviousness concerning an ordinary cloth purchaser. Subjective enquiries are conducted involving people who use branded clothes every time. If the patent officer concludes that the invention was generic, we proceed to the next step of patenting your dress design.
The product should make sense: To patent a product, an inventor must prove that his proposed design is meaningful.
Applications rarely get disapproved of because they do not offer any practical connection to the real world. But still, it is a mandatory step that should not be skipped. To prove usefulness, an applicant must be convinced that the design points to some notable element in the human world.
If your invention passes all the conditions mentioned above, you will be duly granted patent protection for your proposed dress design.
How Long Can You Patent Dress Design in India?
Patent terms and conditions are established by statute. At present, an active design patent’s lifespan is estimated to be 15 years starting from the day the inventor filed the patenting request in India. This law is in accordance with the 1970’s Indian Patents Act. However, several standards must be met before you may eventually protect these designed products.
TRADE SECRET
"Any data or information that relates to businesses and is not known to the general public along with reasonable attempts being made to keep such informational confidential qualifies as a trade secret"
For example, the Spanish retail fashion chain, ZARA, uses a proprietary information technology (IT) system to shorten their production cycle – i.e. the time from identifying a new trend to delivering the finished product – to a mere 30 days. Most of their competitors take from 4 to 12 months. The company receives daily streams of e-mail from store managers signaling new trends, fabrics and cuts, from which its designers quickly prepare new styles. The fabric selected is immediately cut in an automated facility, and sent to work shops. A high-tech distribution system, with some 200 kilometers of underground traces and over 400 chutes, ensures that the finished items are shipped and arrive in stores within 48 hours.
Geographical indications
(GI) are another form of intellectual property. GI protects products that have unique qualities due to its place of origin. Thus it helps preserve a trade passed on from generations particular to a region because of its unique qualities. For example, Assam’s famous golden yellow muga silk gets its colour because of the Antheraea silkworm found in Assam only.
There are over 65 handloom products, and six logos in India registered under the GI Act. So as a community, you can use GI to protect the textile and artistic features of fabric in the fashion industry. It helps protect the interests of a community, union or group of manufacturers of a region. GI will be valid for ten years from registration, and you can renew this IP right for another ten years before expiry.
CONCLUSION
The fashion industry is full of designing, exploring, experimenting and much more with the time, the fashion industry is developing various methods or we can say various ways to enhance their marketing with such enhancement there also exist various legal aspects associated with. The intellectual property right helps the designer to protect its right as well as his duties.
Reference
Intellectual property right by MK BHANDARI