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Alliance Center for
Intellectual Property Rights


IPR REGIME AND FASHION PIRACY IN INDIA

November 15, 2023

*Ms. Spruha Mahale

INTRODUCTION

In the colourful tapestry of India’s diverse culture and heritage, the world of fashion weaves a story of its own. From vibrant textiles to intricate embroidery, India’s fashion industry traces its roots back centuries. Intricate sarees to trendy streetwear, India’s fashion scene is a captivating blend of tradition and modernity. But underneath this kaleidoscope of fashion lies a hidden battle – one that involves creativity, innovation, and the complex world of Intellectual Property Rights (IPR). In a world where fashion trends change at a dizzying rate, the IPR regime plays an important role in safeguarding the creativity and innovations that propel the fashion industry forward. From the world’s most prestigious couture shows to the fastest-growing street markets, the fight against counterfeit and copycat products is a never-ending battle. In India, IPRs of the fashion industry are protected under the Designs Act 2000, Trademark Act 1999, Copyright Act 1957, Patent Act 1970, and Geographical Indications Act 1999.

In the Fashion Industry, a trademark protects a brand name, a logo, or any feature of a fashion attire. Trademarks are created in such a way as to attract consumers and aid marketing. The scope of fashion design trademark protection is very limited. According to the provisions of the Designs Act 2000, the trademark is excluded from the scope of section 2(d), while the definition of ‘design’ is very broad. This means that fashion design that is considered a trademark cannot be protected by the Designs Act 2000. Similarly, fashion design registered by the Designs Act cannot be protected by the Trade Marks Act, 1999.

Fashion designs may be protected under copyright law or design law in India. Section 13 of the Copyright Act of 1957 deals with the type of work in which copyright exists. The copyright exists all over India in the following types of work: Original literary, Dramatic, Musical, and Artistic. Fashion designs fall under the category of 'artistic works'. Therefore, fashion designs may qualify under section 2(c) of the Copyright Act, 1957, and be protected by Section 13(1) of the same Act.

The Designs Act 2000 is intended to protect non-functional elements of a product that are aesthetically pleasing, such as the pattern, decoration, line, or colour applied to any two-dimensional, three-dimensional, or four-dimensional form. This type of design right is valid for up to 10 years and can be renewed for an additional 5 years if necessary. It should be noted that this exclusion for artistic works was not included in the original Designs Act of 1911.

The case of Ritika Apparels v. BIBA highlights the gaps in IPR Laws that the defendant, BIBA, was able to escape. In the case, the defendant copied a design that was created by the plaintiff and started selling it under their names. The plaintiff in the case accused the defendants of infringement. However, the defendants defended themselves by saying that it doesn’t count as infringement since the plaintiff didn’t register their design according to the Designs Act. They also said that they lost their company ownership because they copied the same design over 50 times. This case highlights the need for Indian designers to be aware of the various IP laws that apply to the fashion industry in order to promote artistic innovation and creativity in India.

The design law in India has certain loopholes that do not meet the needs of Indian fashion houses. These loopholes include the fact that the law does not protect unregistered designs, which hampers the creation of innovative designs in the market. Fashion houses need immediate protection for their designs regardless of whether they are registered or not. The registration process for the Act takes around 10 to 12 months, which is not suitable for the fast-paced fashion industry since the new collections only last for 2 to 3 months. To address this, designers must apply for registration well in advance of the market presentation, which increases the risk of exploitation of the designs by anyone under their control. Furthermore, the number of damages that can be recovered under the law is very limited, which is much lower than the amount of money used to create a couture.

In order to develop the industry and protect the IP of designers, controlling piracy in India is extremely important. The structure to control fashion piracy and curb it should be two-fold; firstly, improve the traceability of products. Secondly, amend the laws in India to suit the needs of industry. The first step, i.e., the increase in traceability can only be achieved if designs are properly registered. This process will bring all designs under the protection of the law and will make it easy to trace the criminals who indulge in such practices to impede the growth of the industry. To ensure and encourage design registration, the process needs to be streamlined and shortened. The commercial viability of the product is limited, and a complicated registration process defeats the purpose of offering protection.

CONCLUSION

TWith the increase in fashion events, and the Indian designers reaching globally, the Indian fashion industry is expected to grow 11-12%, and to reach $115-$125 billion by 2025, the need of the hour is to make the law stronger and in favor of the designers according to the provisions of the Designs Act 2000 and, also the Copyright Act 1957. There is a conflict between these two laws, and to resolve this conflict, it is necessary to remove the ambiguities related to the registration as this will bring clarity to the question of protection of the fashion designs as Intellectual Property (IP). It is also important that the laws dealing with the compensation awarded in the event of infringement of IP cover the damage caused to the designer. In addition, it is essential to define fashion design in a more precise manner to remove all ambiguities and provide protection even for unregistered designs

References:
  • Virendra Kumar Ahuja, Design Protection in India: A Critique, 11 EBC IND. 1 (1994).
  • Shishir Tiwari, Intellectual Property Rights Protection of Fashion Designs in India, SSRN ELEC. J. 1 (2016).
  • Ritika Apparels v. BIBA, 2011, CS (OS) No. 182/ 2011, (India).
  • Yosha Dubey, The Role of IPR in Fashion Industry, 10 INT’L J. FOR RESEARCH IN APPLIED SCI. & ENG’G TECH. 1554, (2022).
  • Ayushi Verma, Fashion and IPR Laws in India, FASHION & LAW JOURNAL (Oct. 11, 2021, 13:59 PM), https://fashionlawjournal.com/fashion-and-ipr-laws-in-india/.
  • Shreshth Vig, Indian fashion industry in next 2 years: Trends, challenges, and opportunities, TIMES OF INDIA (Feb. 27, 2023, 14: 15 PM). https://timesofindia.indiatimes.com/readersblog/fashioninfo/indian-fashion-industry-in-next-2-years-trends-challenges-and-opportunities-50945
Author:

*Ms. Spruha Mahale
4th Year BBA LLB Hon’s Student, Alliance University, Bengaluru

Disclaimer: The opinions expressed in the article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of the Alliance Centre for Intellectual Property Rights(ACIPR) and the Centre does not assume any responsibility or liability for the same.