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FASHION KNOCKOFFS: WHERE DOES INSPIRATION END AND THEFT BEGIN?

May 15, 2024

*Ms. Maushmmi M

INTRODUCTION

The fashion industry is rapidly growing and thrives on inspiration, new and borrowed trends, and the reinterpretation of iconic designs. Designers combine various aspects of culture and creativity to turn their skills and ideas into reality. It is safe to say that 'inspiration' is the lifeblood of designs. But where do these creative references cross the thin line into blatant theft, leaving way to ethical and legal problems? The muddy waters of 'fashion knockoffs' raise questions about the originality of the product and intellectual property and shatter the very soul of creative expression.

The Idea of Knockoffs in Fashion:

Fashion, unlike music, literature, and various forms of art, falls into a unique and grey area of law. The copyright law, which is meant to protect original artistic creations, finds it hard to adapt to the utilitarian nature of garments. Trademarks, while safeguarding logos and brand identity, offer limited protection for design elements. This ambiguity fuels courtroom battles, with recent cases illustrating the complexities.

Counterfeiting and its Effects:

According to the Black’s Law Dictionary, Counterfeit is defined as “In criminal law. To forge; to copy or imitate, without authority or right, and to deceive or defraud, bypassing the copy or thing forged for that which is original or genuine. Most commonly applied to the fraudulent and criminal imitation of money”. Counterfeiting of products is one of the common problems faced by the fashion industry. It is said that the overall “fake goods” or counterfeit industry worldwide is worth 3 trillion USD, which is 3.3% of the global trade. It keeps on rising and doesn’t seem to fall at any time. In India, the counterfeit market spans up to 25 to 30% of the economy, with apparel and luxury products being the highest out of it at 31%. It is said that 27% of the consumers are unaware that the products are counterfeit at the time of purchase, but 31% willingly purchase spurious products.

Counterfeits or “knock-offs” pose a threat to the fashion industry, resulting in loss of trust among consumers, devaluation of authentic designs, annual sales losses, failure in expansion and growth of businesses, and many more. It also makes it hard for consumers to figure out whether a product is fake or real and hides the environmentally unsustainable practices, labor efforts, etc.

Case Study:

The Case ‘Louis Vuitton Malletier v. Santhosh’  is a recent example. The plaintiff company, Louis Vuitton Malletier, incorporated under the laws of France was a French Luxury fashion and leather goods company owning the brand ‘Louis Vuitton’ since 1854. The brand owns the trademarks of ‘Louis Vuitton’, the ‘LV’ logo, and the ‘Toile monogram’, which has been acquired the status of ‘well–known trademarks’ from the Indian Trademark Office. During a periodical market survey conducted by the plaintiff in January and February 2018, it was found that there had been manufacturing and selling of counterfeit goods bearing their trademarks by Indian entities. A single judge bench of Amit Bansal, J granted a permanent injunction to the plaintiff on all the trademarks owned by them. Further, the court held that the defendants had blatantly infringed the said marks and hence, were entitled to pay costs of Rs 9. 59 lakh to the plaintiff.

Legal Remedies and Preventive Measures available:

Under The Trademarks Act, 1999, infringement, search, and seizure of infringing goods, injunctions, and damages are addressed respectively. The Copyright Act, 1957, applies to certain cases involving counterfeit designs or creative elements. The possible remedies that the plaintiff can avail are injunctions, damages, delivery up, search, and seizure. There is also a possibility of initiating criminal proceedings that can result in criminal penalties, including imprisonment.

Apart from all these above-mentioned legal remedies and actions, brands can come up with innovative ways to create a sense of security and trust among consumers. They can use invisible pigments that are impossible to remove or defraud, hide QR codes inside the apparel or accessory that be scanned using a smartphone, NFC (Near Field Communication) chips and other property tracking devices can be embedded and used to verify the authenticity, prevent tampering, and enhance tracking of goods. They can, further, strengthen their supply chain to reach out to consumers in an efficient manner within a short period.

CONCLUSION

Collaborative effort plays an important role in fostering a sustainable future for the fashion industry. Innovation in ethical materials, and adopting new production methods can be used to form partnerships between manufacturers and designers. Open-source platforms can encourage ethical production, and a shift towards well-made, practical clothing encourages the ‘buy less, buy better’ mentality. Customers have a highly influential role in demanding transparency and supporting ethical brands. They help redefine luxury as timeless design, ethical sourcing, and masterful craftsmanship. Lastly, the legal frameworks must be modified to provide clear and transparent protection for truly innovative designs without hindering the competition. World Intellectual Property Organisation (WIPO) and other regulatory bodies must develop a uniform strategy to protect the originality of fashion products.
The collective efforts of designers’ consumers and policymakers are essential to navigate the complexities of ‘inspiration v theft’ and ensure a future where fashion thrives on genuine creativity alongside ethical responsibility.

REFERENCES

  • Priya Adlakha and Rima Majumdar (S.S. Rana & Co.), Counterfeiting in the Fashion Industry – India, Lexology https://www.lexology.com/library/detail.aspx?g=84a8b542-3028-4f03-afc1-1596c8eef926 (last visited Feb 20, 2024, 6:00 pm)
  • Henry Campbell Black, M. A., Black’s Law Dictionary, pg. 420 (4th ed. 1968)
  • AlpVision, HOW MUCH MONEY DO BRANDS LOSE TO THE COUNTERFEIT FASHION INDUSTRY?, https://alpvision.com/counterfeit-fashion-industry/ (last visited Feb 22, 2024, 5:30 pm)
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  • Louis Vuitton Malletier v. Santosh, 2023 SCC OnLine Del 2183
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Author:

*Ms. Maushmmi M
1st year 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.