By Kashyap Partners & Associates LLP (KPA)

06/09/2021
The role of Intellectual Property (IP) in the Fashion industry is very complex. There is still ambiguity about how fashion designers should reach out to the law for protection of their designs. This area of law commonly creates confusion in the minds of people and does not effectively protect fashion designs.

In the fashion industry one will often come across the term “Fashion Piracy” which is an unauthorized and illegal reproduction or copying of an already made design. Fashion piracy generally holds and includes two meanings: knock offs and counterfeits. A knockoff is said to be a close copy of the original creation which is sold under a different label. A counterfeit is the exact copy of the original fashion design and it is sold under the same label as the original which is also called a fake product. To protect designs from such knock offs and counterfeits, the industry resorts to IP protection.

The law gives protection to fashion designs under two types of IP specifically: copyrights and designs. There is a very thin line difference between the protection granted by copyrights and design law when it comes to artistic works. In India, however, the laws have been made fairly easy, to determine the difference between the two kinds of protection. In India Copyright protection is governed by the Copyright Act, 1957 and designs are protected under Designs Act, 2000.

Copyright gives protection to creative works which may be in a literary, artistic, educational, or musical form. Artistic work generally includes paintings, photographs, jewelry, designs, fashion designs etc. Designs as defined under the Designs Act is considered an external feature such as the shape, configuration, pattern, ornament etc. which has been applied to any article through industrial process that can be seen on any article and that can be determined only by the eye. One major difference between the two forms of IP is that protection under Copyright is given from the exact second that an original article is created. However, the Designs Act only gives protection to an article when the owner gets the design registered. This makes a copyright an inherent right, and a registered design a statutory right.

Designs need to be original and expressed in a material form to gain protection. The expression will generally be considered original if it is not a copy of something. Fashion designs can gain protection under Copyright law if they fall under the purview of 'artistic works'.

Designs that can be registered under the Designs Act, 2000. Those are registered only get protection under Designs Act. Designs which are not registered may receive Copyright Protection. In particular, designs that cannot be registered under Designs Act because they are original artistic works get protection under Copyright Act.

It should be noted that dual protection can apply to designs – Section 15 of the Copyright Act explicitly permits. However, this dual protection can be lost in two ways. Once the design is granted registration the owner foregoes the protection he originally had under the copyright law. This has been provided under Section 15(1) of the Act. When there is a copyright on an unregistered design, such copyright ceases to exist the moment the article on which the design is applied has been reproduced by an industrial process more than fifty times as per Section 15(2).

The art applied to an article gives it an aesthetic appeal and the moment more than fifty pieces of that article are sold, the artwork loses its place under the copyright law and the protection it extends and comes under the ambit of the design law. This has been seen to be an issue for designers as they tend to display their creativity at fashion shows, boutiques etc. When on display, these designs are considered put on a public platform and lose their right under design protection.

In most situations, designers refrain from registering their fashion designs due to the dynamic nature of the industry. Once registered, a design is protected for ten years and the overall visual appearance of the article is protected. The Design Acts prevents anyone other than the owner from replicating the product as well as creating articles with similar designs to the registered design. If, after observing how the general public reacts to a fashion design, the creator feels that his or her design is here to stay for years to come and will be sold in large numbers, they should consider opting for design registration under the Designs Act, to protect their creations.

source: https://www.sooperarticles.com/law-articles/intellectual-property-articles/fashion-industry-copyright-design-protection-1810981.html