By Kashyap Partners & Associates LLP (KPA)

06/09/2021
Fashion Law is an emerging arena of legal specialty, encompassing various legal issues from IP to contracts to laws relating to the entity and its policies and procedures. Fashion law seeks solutions to the demands involving the entire production chain of the fashion business, such as questions about design rights, image rights of models on the catwalks and fashion catalogues, and even problems as slave labor in the textile industries. Another common problem is the practice of counterfeiting designs of big brands at small local markets where tracing and suing a particular individual or entity becomes a task amidst a well-functioning black market for such products.

Even though the Indian IP Laws protect some components of fashion, none of them provide a one-step solution/protection to all answers of the fashion industry. This can be practically observed with the rampant prevalence of knockoffs and counterfeits ever flourishing in the market.

Even though copyright protects the creative aspect of clothing or accessories, it does not provide a monopoly over the useful item of a fashion product or say the functional part of it. Moreover, a major limitation in copyright law is that it protects fashion designs given that it is registered under the Designs Act, but the protection expires if the design is reproduced more than 50 times. This becomes a deterrent to most people in the fashion industry who earn a living through economies of scale. At one point this provision may protect stand-alone big designers who produce custom-made clothing or accessories or footwear.

Apart from copyright, even design registration provides for a certain level of protection but with its own limitation. This limitation is owed to the absence of design patent protection in India. Patent protection can be sought but only for the technology used in making such fashion apparels, clothing, footwear, etc. With a growing trend in the innovation of eco-friendly products and production mechanisms, patents do play a pertinent role in the industry, but this too gets diminished by the fact that patent registration is an expensive and time-consuming process, which is not always a feasible option since the industry is dynamic with trends being influenced by several varying factors.

The list goes on for such individual loopholes which give rise to piracy and counterfeits, but there isn’t some one-stop solution to these either. Both industry experts and small players along with legislators jointly need to come up with a robust system beneficial for everyone.