Author: K. Amritha Rao, IV year of B.A.,LL.B. from Ramaiah College of Law
Introduction
Intellectual property law is a collection of laws that safeguard products of human ingenuity such as ideas, words, works, sounds, and innovations. IP rights are those that are granted to the inventor under IP law in exchange for his unique creations. These are not absolute rights; they are granted in light of a country's security and policy considerations, and hence represents a dynamic area of law. Any company needs to have its products protected by IP laws in this day and age as the world has shifted towards the technological era of the creative generation of ideas. As a result, IP is at the core of industries as well as the economy. There exist various types of IP protection available to safeguard a person's creation of the mind. The most popular choices would be the Patents, Trademarks and finally Copyrights.
Patents-These are legal IP rights given to an inventor or creator of innovation to protect it from theft of others. The key to obtaining a successful patent is to prove Novelty, Non-obviousness, Utility and Disclosure of the product invented. In other words, this means that the investor must demonstrate that his invention is a new concept that can be made into a product for commercialisation and be used for the public good. Patents offer the best type of protection for innovations but at the same time come with a high fee, time-consuming and complex application process. These rights are granted for 20 years after the application is filed.[1]
Copyrights- They are a fascinating set of rights provided by IP law in the sense that these are the only rights that are automatically given to the inventor for his creative works. Literature, art, musical works, movies and tv shows are examples of creations that can be protected by copyrights. But to obtain a copyright, one must fulfill the standards of originality, creation of a human and fixation in a tangible medium. Further actual enforcement of copyrights does require the creator to file an application claiming his work to be protected by such IP rights. They are extremely beneficial to creators as these rights are the most cost-efficient with the longest duration of about 70 years and more. In a broad sense, copyrights cover within their ambit any “artistic work”[2].
Trademarks-Trademark law in intellectual property can be defined as a distinctive mark or appearance of a product that sets it apart from the rest in the markets. To go in-depth, it is the association that people make with the mark or design to the underlying product itself eg. Nike swoosh. To get a trademark on creative work, two conditions must be met- Distinctiveness/uniqueness along with the underlying product. This means that the design identifies and distinguishes the product from others. Trademarks are important as it not only protects the rights of a person but also plays a key role in the commercialization of the product in the markets. Trademarks are more expensive to obtain than copyrights, as they need registration and actual commerce of products. However, with higher costs comes better protection. Trademarks have no expiration date. As long as the product is distinct and people identify it with the designers, they have the right to a trademark.[3]
This article will focus mainly on trademarks and copyrights since they are the largest cases of IP infringements, seen continuously in the fashion industry. Trademarks and copyrights are the fundamental rights that protect the creativity of designers and therefore is of core importance in the apparel business.
Rise of IP violations in the apparel Industry
The fashion or apparel industry is a booming global business with a billion-dollar investment that requires a tremendous amount of intellectual talent to come up with designs on a very regular basis. The rise of commercializing counterfeited products in local markets is very prevalent in various parts of the world such as China, India, Bali, the Philippines and other places across the world. Counterfeiting can be explained as “any manufacturing of a product which so closely imitates the appearance of the product of another to mislead a consumer that it is the product of another[4].” This can be seen through the copying of branded or luxury goods by way of their design, textiles, logos or packaging and are always sold at lower prices with inferior quality. Counterfeiting takes place in every sector of this industry be it accessories, clothing, jewellery, shoes, bags, the list goes on.
The notion of 'Piracy Paradox' is the only thing that enables designers to continue their creations in such volatile marketplaces. This means that the fashion industry, probably the only industry in the world, has managed to turn counterfeiting into a competitive advantage[5]. The constant annoyance of having their ideas plagiarised has driven designers to become more ambitious and generate more innovative talent rather than allowing the imitations to jeopardise their financial growth. Designers, therefore, tend to come up with trends that are in one day and out the next, making the fashion business very competitive thereby using their creativity to secure a place for themselves in the industry. As a result, the sector is very dynamic and fast-paced, with newer commodities continuously challenging innovation. Those manufacturing “fakes” must hence always rely upon the original creations to hit the markets, gain popularity among consumers and only then begin to produce and sell the knockoff versions by which time the original creator of the design would have earned his profits and moved on to a next trend or creation. The continuation of illicit copying of creators' original ideas is primarily fueled by the demand for markets selling such replicas, which remains highly popular for the obvious reason of keeping up with the trends on a low budget.
The argument against ‘Piracy Paradox’ is that it works effectively for designers who have already managed to successfully establish a strong, stable, and autonomous brand. The individuals who would ultimately be affected by the weak IP rules for their designs are those who are just starting in the industry and trying to make a name for themselves. Indigenous textile developers, small scale weavers, and designers are the most vulnerable, as they lack the resources to overcome IP infringements. For decades, policymakers have neglected the need to strengthen legislation in this area, fearing that strong trademarks or copyrights would allow creators for strong monopolies over their work, rendering it inaccessible to the general public. Even though the global fashion market is one of the largest growing sectors, it still has not been able to provide the necessary IP rights for the creativity of the designers.
Important judgements
Star Athletica, LLC v Varsity Brands, Inc.[6]- The District Court of the United States ruled that only those parts of the garment that demonstrate the designer's originality are eligible for IP protection. Copyrights are granted based on the notion of separability. As a result, designers are forced to choose among more expensive protection options such as trademarks or design patents, which do not have the same limited scope of protection as copyrights. However, because of their greater financial resources, larger brands relatively have an easier time protecting themselves than emerging designers.
Christian Siriano vs. Former Licensee[7]- This was a complex trademark dispute between Christian Siriano and his former licensee, M&A Imports. Mr. Siriano was accused of violating a trademark agreement with the Imports firm, which allowed it to use his label to manufacture and sell affordable apparel. Mr. Siriano, on the other hand, demonstrated that the agreement did not include the sale of “low quality” goods under his name since it would be detrimental to his image. Even though the situation was settled amicably by both parties through a settlement of the dispute, it highlights that even well-established designers are subjected to strenuous IPR lawsuits that divert them from what they are meant to be doing, which is inventing unique creations for the public.
Ritika Apparels v BIBA Apparels Pvt. Ltd[8]- Another instance of Intellectual Property law violation was submitted before the Delhi High Court, this time including significant damage to the original creator due to a lack of awareness of the laws. BIBA took Ritika Apparels' designs and sold them on a large scale to its vast consumers. Since Ritika Apparels had not registered the design under the Designs Act 2000, BIBA was left without any liability. BIBA used a loophole in the Copyright Act's Sec.15(2), which stipulates that if a design isn't registered with the appropriate design authority, the copyright on the design will be eternally lost after 50 reproductions. As a result, Ritika Apparels lost the lawsuit owing to a lack of self-awareness, and BIBA was left scot-free.
Need for Strengthening of IP laws
In India, as seen above, creativity in the fashion industry can be protected not only by trademarks and copyrights acts but also by the Designs Act of 2000 and Geographical Indications. Even though these laws have been well established for quite some time now, India continues to struggle with the effective implementation of such rules. The impact of counterfeiting can have devastating effects and therefore there is a serious need to strengthen IP in this overlooked sector of business-
Violation of the laws- The blatant infringement of laws such as copyrights, trademarks, or even the designs act by almost anyone without facing serious repercussions or consequences creates a precedent for others to follow in the same route, leading to a staggering law mechanism in the country.
Economic impact- loss of total economic revenue due to support given to illegal markets by consumers, resulting in regression of a country's development. Furthermore, the brand that is being targeted may suffer significant losses and may even be condemned, since low-quality counterfeits can harm its reputation.
Restricts originality and creativity- any unique design innovation or creativity is discouraged for fear of being stolen and someone else plagiarizing and profiting from the creator's idea.
Lower-quality goods- cheaper goods are well-known for their imitations of expensive products at lower costs. Reduced costs automatically imply lower quality and durability, resulting in a downward loop of deteriorating economic standards.
Conclusion
With the world growing more technologically reliant by the minute, plagiarising others' innovation and profiting from it has never been easier. As a result, it's critical to comprehend the significance of intellectual property in the apparel industry, a critical economic sector for any country, and strive to improve these rights and legislations. Furthermore, to safeguard their inventiveness in this day and age, the creators themselves must be vigilant and deepen their understanding of the notion of IP.
[1] India’s Patents Act of 1970, 2003 Patent Rules and the 2016 Patent Amendment Rules
[2] Section 2 (c) of the Copyright Act, 1957
[3] 1999 Trade Marks Act and the Trade Marks Rules of 2002 and 2017
[4]https://www.oecd.org/sti/ind/2090589.pdf
[5]As stated by the law professors KalRaustiala and Christopher Sprigman
[6]137 S. Ct. 1002 (2017)
[7]A case of 2018
[8]CS(OS) No. 182/2011