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Author - Isha (This article was written by her during the course of her internship at Legal Soch Foundation)
Abstract
The fashion industry is a very dynamic and creative sector with a significant global impact. Intellectual property rights such as trademarks, designs, and patents play a pivotal role in safeguarding the innovation and uniqueness of the designs made by the designers. This article explores the different types of intellectual property rights, challenges regarding them, and ways to protect them. Designs include clothing, accessories, and textile patterns, protected through design patents or registered designs; both main aim is to prevent replication. Trademarks are crucial for a brand to be recognised, encompassing logos, brand names, and unique trade dress material. Patents are essential for safeguarding innovative materials and manufacturing processes. Despite the fast growth of the fashion industry, it faces many challenges due to the short lifecycle of products, counterfeiting, etc. As problems arise, some solutions are also there to protect them, such as registration, watermarking, vigilant monitoring, and legal action. So, understanding and utilising IPR properly gives designers the power to protect their property in this industry, which is driven by creativity and originality, ensuring the protection of the rights of designers.
Keywords
Fashion, Patent, Design, Trademark
Introduction
We all love the term “fashion”. It’s an essential part of our everyday lives. More and more consumers want to purchase products from brands that have a good reputation in the market. The fashion industry is a highly creative and dynamic industry. It is based on innovation, creativity, and unique branding. IP rights play a crucial role in safeguarding the creative and artistic endeavours of designers. It also helps them build and safeguard their brand identity. Today, the fashion industry is among the world’s fastest-growing industries, with a yearly turnover of more than $500 billion. It is a constantly evolving industry, with new trends emerging all the time. Major brands are putting a lot of money into their IP rights. IP has a major impact on business and growth in the fashion industry, as people nowadays buy mostly based on the names of brands.
What are Intellectual property rights?
Intellectual property (IP), also known as intellectual property or intellectual property rights, is the legal right granted to a person or an entity for the use of their intellectual property or inventions made by the mind. The purpose of intellectual property rights is to give creators or inventors a degree of control and safeguard over their intellectual property, thereby promoting innovation, creativity and economic development. It includes a vast array of intangible property and creations. Intellectual property rights are usually classified into several categories, including but not limited to: Copyright, Trademarks, Patents, Trade Secrets, Industrial Design, Geographical Indications, Plant Breeders’ Right’.
IPRs are important in fashion industry because they help to protect the intellectual property of fashion brands. This will help in combating counterfeiting and piracy, which can damage the reputation and financial bottom line of fashion brands. IPRs can also help in promoting innovation in the fashion industry by encouraging designers to create new and innovative designs.
Types of Intellectual property rights
There are different types of Intellectual property rights such as;
Copyright - Copyright protection applies to original literary, artistic, and musical works, as well as software, and gives exclusive rights to the owner to reproduce, distribute, and display their work.
Patent - Patents protect inventions and innovations of inventors giving them exclusive rights to make, use, and sell their inventions for a certain period of time.
Trademark - Trademarks are symbols, names, or slogans used to identify and distinguish goods and services from others.
Trade secret - Trade secrets contain confidential business information, such as manufacturing processes, customer lists, formulas etc.
Industrial Design rights - It protects the visual designs or aesthetics of objects, such as the ornamentation, product shape of the object.
Geographical Indications (GIs) - GIs Protect the reputation and quality associated with products originated from the specific geographical location.
Types of Intellectual property rights applicable in the fashion industry
Designs - Protecting aesthetic creativity
Design protection is a fundamental aspect of intellectual property law that focuses on safeguarding the visual appearance of products, which is especially critical in the fashion industry. Clothing, footwear, accessories, and even textile patterns are all eligible for design protection. Design rights protect the designer from others copying their design or imitating the unique features, visual elements created by the designer.
The case Ritika apparels vs Biba, clearly states that if a creation which has not been registered under the design act, which is capable of registration and reproduce more than fifty times by industrial process, then it will consider that the copyright on the design is lost forever.
Types of Design Protection
Design Patents: Design patents provide protection for ornamental, non-functional aspects of an article of manufacture. In the context of fashion, this includes unique clothing designs, jewelry shapes, and accessory appearances. Design patents are usually of short- term protections and are granted for a specific visual appearance for a limited period, usually around 15 years.
Registered designs: Different jurisdictions offer registered design protections, where designers can register their designs with relevant authorities. There registration give exclusive rights to owner of their visual designs, preventing unauthorized replication. Unlike design patents, registered designs can cover both two- dimensional and three- dimensional aspects such as textile patterns and the shape of clothing.
Trademarks: Building brand identity
Trademarks are critical for establishing and maintaining brand identity in the fashion industry. A trademark includes a word, phrase, symbol, design, or a combination thereof, that identifies and distinguishes the sources of goods or services. It plays a pivotal role in helping consumers recognize and associate products with a particular brand.
Brand Names and Logos: Fashion brands work on brand names and logos, which is their trademarks. These marks help consumers differentiate between various designers and products, fostering brand loyalty and consumer trust.
Trade Dress: Trade dress refers to the unique, non-functional visual elements of a product or its packaging that signify its origin. In this fashion industry, this could include the layout of a retail store, distinctive packaging, or the appearance of a website.
In the landmark case of Micolube India ltd. Vs Rakesh Kumar & Ors broadened the scope of trademarks protection for design. It says that if a design is registered under design act, it not only qualifies to get protection, but also be protected by taking a passing off action provided that the design was being used as trademark post- registration.
The Delhi High Court issued an order prohibiting the defendants from influencing and transferring the well-known trademarks "Louis Vuitton" and "LV" by using the same marks. The plaintiff was awarded damages in another case. In the case Louis Vuitton malletier vs Atul Jaggi, it was alleged that the designers are not only allowed to protect the logo or brand name but also the unique characteristics of the products.
Patents: Innovations in materials and processes
While patents are not as commonly associated with the fashion industry as designs and trademarks, they still hold significance in protecting certain types of innovations. Patents generally includes inventions that are novel, non-obvious, and useful. In the fashion context, patents may cover new textile materials, manufacturing processes, or functional elements integrated into clothing or accessories.
Novozymes is a Danish Biotechnology Company that was granted a patent in 1987 for the development of a technology where an enzyme called 'Cellulase' is used to remove indigo color from denim so that the fabric has a worn-out appearance. This technology for the treatment of stone washed denim was widely used in the denim industry under license from the company. In order to patent an invention, it must not be used by others in the country before the filing of the patent application. In addition, the invention cannot be obvious to a person with ordinary skills in the field of art. Since most of the clothing industry are simply reworking these patented inventions, they are not new enough to satisfy the statutory requirements of patent protection.
Utility patents: utility patents can be granted for novel and non-obvious functional innovations. For example, a new type of fabric that offers unique properties, such as enhanced breathability or durability, could be eligible for utility patent protection.
Design Patent: A design is the "surface decoration" of something. It could be the shape or arrangement of something. To get a design patent, the design has to be "inextricably linked" to the object. A design patent only protects the appearance of the object. For example, the original shape of a glass bottle is the shape of a Coca-Cola bottle.
Challenges and considerations in protecting IPRs.
The fast-paced industry presents certain challenges when it comes to intellectual property protection: -
Short lifecycle: fashion industry is changing and evolving every day, so in a short span of time a product can become outdated. This can impact the practicality of longer- term protections like patents and registered designs.
Copying and Counterfeiting: Counterfeiting and design piracy are two of the biggest problems facing the fashion industry. Fake replicas and knockoffs can reduce the value of your original designs and damage your brand's reputation.
International Considerations: Fashion is a global industry, and designers need to protect their work in every country by navigating through their intellectual property laws in various countries to protect their creations and brands internationally.
Balancing Creativity and protection: creating a right balance between fostering creativity and enforcing IP rights can be challenging. Overly stringent protection could stifle innovation and limit design inspiration.
Ways to protect IPRs
Register your designs, trademarks, and patents with the appropriate authorities.
Designers must use watermarks and other copyright notices on their designs and products
Designers must be vigilant in monitoring the market for counterfeit and pirated products.
Designers, when necessary, must take legal action against infringers of their Intellectual property Rights.
Conclusion
Intellectual property rights are indispensable in the fashion industry, offering designers the means to protect their creativity, innovations, and brand identity. From the design elements of your designs to the visual elements of your brand identity, the mix of design rights, trademark, and in many cases, patents, provides a framework for protecting the multi-faceted assets of your fashion business. Understanding the complexities of intellectual property protection allows designers to thrive in an industry where creativity and originality are the keys to success.
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