INTRODUCTION

One of the greatest fashion creator Gianni Versace once said “Fashion goes with the feeling of moment. Fashion has been considered to be expressing the emotion by a way innovation or creativity of the different styles and new trends however for the safeguard of the same, It is very imperative to note that the legislation need to be more stringent which protect the originality and Uniqueness in the fashion Industry. In India Intellectual Property Right provide the rights to owner and also provide them the right to sue others for the infringement or exploitation of their innovation. The fashion industry is continuously growth for providing the newest trends to the customer for maintaining the popularity and reputation in the global which further helps in the economy of the nation. thus, it is need of hour to protect the ideas which has been stolen or counterfeiting the product and sold it online through the fake website at the lower price as to in the name of reputation and goodwill of original brands. IP provide the protection of various form of artistic demonstrators to the creator i.e., consist of Trademark, copyright, patent, design etc which differentiate them from the other.

LITERATURE REVIEW

Kal Raustiala and Christopher Sprigman , (2006) In this article the author clarified that there is not any need for the IP protection in the fashion Industry as it will help the creator for designing and creating new and trending products.

Poojan Sahny, (2012) In this article author encompasses on the legislation of the Intellectual Property which takes lots of time i.e., 10 to 12 months especially in Design Act, 2000 however any new fashion or trending items last for 3-4 months or in their respective season which provide hurdles to the fashion industry market.

Susan Scafidi, (2006) In this article author expressed her thought regarding the profits that has been received by the product in the fashion industry which must goes to the rightful owner and creator not to someone who sell the product in the name of original product through fake websites and earned the profits.

Louis Vuitton Malletier v. Atul Jaggi (2010) , In this case it dealt with the Trademark jurisprudence wherein Delhi high court restrain the defendant from passing of the trademark Louis Vuitton by using identical trademarks as their own. IP laws allows the owner to protect their innovation and provide them exclusive rights to the owner.

Rajesh Masrani v. Tahiliani Design Pvt.Ltd (2009) , Since this was the first case to establish jurisprudence that protection under copyright law given to any fashion design is much stronger as original artistic work than protection offered under the Designs Act, 2000, fashion designers in India always seek protection as artistic works under the copyright law rather than the designs act. This is because the Designs Act, 2000 does not provide equivalent protection.

RESEARCH OBJECTIVE

The research objective of the research paper by the following ways:

1. To discuss the counterfeiting of the fashion brands and earn profits out of it.

2. To discuss the Intellectual rights that can used by owner to misuse the commercial market and earn profits in a wrong way.

3. To analyse the intricacies between the IP law and fashion Industry and find out the solution to fill the gaps between them.

4. To find out the solution by which customers are prevented from using the fake product or copying of original product i.e., sold to customers through the fake websites by using their reputation and goodwill in the market.

UNDERSTANDING THE FASHION INDUSTRY IN INDIA

As we all aware the Indian textile Industry has been developing since many years ago and it is continue developing by creating the new innovation, Now days people attract more towards the trending item and buying unique product that they are not bought before. In the film industry the actors are using or promote the more attractive product and unique both off and on screen and their fan try to follow their favourite actor which result in the increase of economy. In addition to being a rich source of intellectual property, the fashion industry is continually inventing and pushing fresh concepts and developments. The creative process goes beyond the design phase and include product marketing and advertising campaigns, regardless of whether it is for ready-to-wear or haute fashion. This is necessary in order to achieve the vital competitive edge that is necessary for success in the fashion business. It is only very recently that society has accepted fashion as a valid creative activity, despite the fact that it has been around for a very long time and has had a significant impact on significant historical events. An area of study within the realm of art that focuses on the production of garments and other accessories that are meant for everyday use is known as fashion design. The one who exhibits a creative and artistic tendency is referred to as a designer. The rich visual imagination that fashion designers possess enables them to manifest their ideas and thoughts into clothing, which is a significant feature of their work. The creation of intellectual property (IP) takes place when an individual makes use of their intelligence and creativity to generate a work that is unique, distinctive, or innovative. Intellectual capital is the most important asset that the fashion business possesses, and it is the most valuable asset when it is merged with a distinctive brand identity.

INTELLECTUAL PROPERTY RIGHTS IN FASHION INDUSTRY

Intellectual property are the rights which are given to individual makes use of their intelligence and creativity to generate a work that is unique, distinctive, or innovative. As fashion is derived from the person intellect and by his creativity thus it is come under the purview of Intellectual property law. however, a result of counterfeiting, the company that originally owned the item suffers both financial loss and damage to their reputation. In order to aid in putting an end to such piracy and counterfeiting, it is now necessary to use or manage intellectual property in an efficient manner. Intellectual property rights are not intended to prohibit copying; rather, they are designed to identify the person who created the work and to provide acknowledgment to the person who is legally the owner of the work. It is imperative that these tactics be implemented and managed in a manner that is more adaptable and in keeping with the "virtual era," which is characterised by widespread counterfeiting that may be difficult to eradicate in the future. From the very beginning, fashion designers have a responsibility to make certain that their intellectual property rights are protected and handled in an acceptable manner. Article 27 of the Universal Declaration of Human Rights says that everyone has the right to be protected their intellectual property. This includes the moral and material benefits that come from creating scientific, artistic, or creative works. It was the Paris Convention for the Protection of Industrial Property (1883) and the Berne Convention for the Protection of Literary and Artistic Works (1886) that first recognised the importance of laws which protect intellectual property which come under the purview of the World Intellectual Property Organisation (WIPO). In India there are different statutes which dealt with different types of intellectual property i.e.,

1. The Trademarks Act, 1999.

2. The Copyright Act, 1957.

3. The Patents Act, 1970.

4. The Designs Act, 2000.

5. The Geographical Indications of Goods (Registration & Protection) Act, 1999.

6. The Semiconductor Integrated Circuits Layout Design Act, 2000.

7. The Biological Diversity Act, 2002.

8. The Protection of Plant Varieties and Farmers' Rights Act, 2001.

TRADEMARKS IN RELATION WITH THE FASHION INDUSTRY

A Trademark is defined under the section 2(l)(zb) “means a mark capable of being represented graphically and which is capable of being distinguished the goods or services of one person from those of another and may include shape of goods, their packaging and combination of colours”. In the fashion industry it protects the brand name which provide the goodwill of the creation and create the reputation in the market, and it also help to prevent from the counterfeiting of the product i.e., copying the brand name sell it in the name of original brand in a very lower price and gain profit of it. The fashion Industry includes shoes, clothes and etc which can be registered by their logo, symbol or Image, size, shape, colour, colour combination, graphics or packaging etc. Under the section 25 the period of the protection is 10 years, and it can be renewal after every 10 years from the date of registration. In Case of Nike Inc. v. Warren Lotas et al Nike filed a lawsuit against designer Warren Lotas, who is located in Los Angeles. According to the allegations made in the complaint, which was filed with the Central District of California in October 2020, Lotas was accused of selling "illegal fakes" of Nike's popular Dunk footwear. In a final verdict that had still to be signed, the court ordered Lotas to stop selling a variety of products that bore remarkable similarities to those manufactured by Nike. Additionally, the court propounded that the trademarks surrounding the shoes are legally enforceable. The parties thereafter came into the private settlement. In another case of Louis Vuitton Malletier, S.A. v. My Other Bag, Inc., In this case the famous brand Louis Vuitton filed the suit against the small startup My Other Bag which alleged that the trademark has been infringed by the My other bag and exploiting their famous trademark. The court of rejected the suit by stating that the company must not have completely restrained the market and the accusation are held to be irrelevant as the product was considered to be the parody. In the another case of Micolube India Limited v. Rakesh Kumar Trading As Saurabh , expanded the purview of the trademark protection, The Hon’ble Delhi high court held that if the design is registered under the design act cannot take action against the infringer however if the same has been granted protection under the Trademark, can institute the action against the infringer.

THE COPYRIGHT UNDER THE FASHION INDUSTRY

The copyright include the creativity or artistic works like musical works (including lyrics),dramatic works (including accompanying music), pantomimes and choreographic works, pictorial, graphic and sculptural works, motion pictures Research and other audio-visual works, sound recordings, and architectural works. The copyright also includes the fashion because it is come under the artistic work i.e., designing clothes ,shoes, decorate the stuff and etc. Under section 2(c) of the Copyright Act protect the artistic design work and duration of the protection is 60 years and life of the copyright owner as per the section 23 of the copyright act. As such it is not imperative to registration of the work, it provides the protection even without the registration however the design work under the purview of the Copyright Act is limited by the section 15 of the Copyright Act. In the Case of Microfibres Inc v. Girdhar and Co Two companies, which will be referred to as “A” and “B” were each involved in the creation and marketing of one-of-a-kind upholstery fabrics that had imaginative and artistic designs. “A” asserted that “B” had replicated and produced designs utilising materials that were equivalent to those that “A” was currently using. “B” created these designs from scratch. The argued from the defendant side is that the product is not come under the lieu of the Copyright Act rather it is protected by the Design Act and had been created more than 50 times. According to the decision made by the Delhi High Court, the design must be registered under the Designs Act once the creative work is applied to an object and the article is manufactured throughout the manufacturing process. It is possible that the design will continue to be protected under the Copyright Act even if it has not been registered under the Designs Act. This protection will remain in place until the design has been applied to an object for more than fifty times throughout the manufacturing process. In the case of Pranda Jewellery v. Aarya 24K the Hon’ble court in this case held that an artistic work as long as qualified for the artistic work under the patent act shall enjoy their protection under the copyright Act, 1957 however it has been design by the way of industrial process then it would be enjoy the lesser period of the protection under section 11 of the Copyright protection Act, 1957. In another case of Unicolors, Inc. v. Urban Outfitters, Inc., the hon’ble court clarified that printed pattern in women dress or certain design can be granted the copyright i.e., means granted the protection for the lifetime and 60 years.

PATENT UNDER THE FASHION INDUSTRY

The Patents are oldest form of the intellectual property rights with an aim to encourage economic and technological development i.e., exclusive right given to the inventors who discovers something new for example In fashion industry like shoes or clothing and design patent are also the part of the patent which protected the ornamental and decorative aspects of the certain functional products. As such there are two types of patents existing which are available to the fashion designers.

a) Utility patent: Utility patents protect a novel and useful device, process, method of manufacture, or material composition. Utility patents provide incremental advancements with protection through a framework akin to the patent system. These patents protect small-scale innovations by giving the inventor the only right, for a short period of time, to use the protected innovation commercially without the inventor's consent. The time span is differed between countries by five to fifteen years. As per the under Section 3 of the Indian Patent Act, utility patents are not granted in India. Even though the fashion business uses utility patents less frequently than other industries, inventions do happen, and utility patent applications are filed by inventors. Nike's “automated lacing system,” which is covered by US Patent No. 8,769,844.2, is one instance of a utility patent recently awarded that relates to footwear .Utility Patent provides the protection of 20 years from the date of the filing the application of the registration.

b) Design Patent-Design refers to the decorative characteristics of the product and it must be a novel and unique which is not similar to the previous design which shown ingenuity and the ability to be manufactured or used in a certain industry. Design Patent provides the protection of the 14 years from the date of filing of the application of the registration. During the pandemic all the invention which are not similar to the previous design has been protected, for example N-35 Mask of Xiaomi are being protected under the patent act which provide 3D skeleton that can be adjusted to any face.

THE DESIGNS ACT, 2000

Under the Design law the protection of design can be granted if it shown ingenuity and unique and it is not match with the previous design or there should be not any publication of the design. The design is protected only for ten plus five year subject to the condition which takes registration of around 6-15 months from the date of the application of the registration. The creator is not able to benefitted from it because it takes a lot of time for registration and also if there are infringement of their design, the maximum compensation amount is 25k which far more less than the litigation cost i.e., not economically viable. Famous Indian designers such as Anju Mody, Anita dongre, Sabyasachi have registered their designs.

PROBLEMS UNDER THE DESIGNS ACT, 2000

Under the said there is not any provision for the protection of the unregistered design as we all know about the dynamic nature of the fashion Industry, it continuously changes at a very regular interval and come up with the trending product. Thus, there is a need for considering the registration immediately that too automatic. The registration of the design is a imperative for having the privilege to putting their innovation to the market and gain recognition of it. The entire registration cycle takes place around 10 to 12 months from filling the application to granting the certification of the same. Most of the fashion article i.e., Clothes and other accessories last for 3-4 months therefore, approximately all of the designers apply for the registration of the designer even before the introduction of the design into the market. During the pendency of the Registration most of the design exploited by any of the employee or any third party for earing the profits from the same. Under the Section 22 of the design act, there are not any adequacy of the damages, the maximum damages awarded to the designer is 50,000/- in a civil case, which is even far less than the litigation cost.

GEOGRAPHICAL INDICATIONS IN THE FASHION INDUSTRY

The geographical Indication is a sign or label which shows the reputation or characteristics of the state from where it possesses geographical origin and qualities. Fashion is not about the unique product or something new, but it also includes the tradition cultures, clothes, decorating item and other accessories i.e., not made by any high designer house but which made by skilled worker using traditional Manufacturing Process. All of India's traditional fashion assets, from Kashmir's Pashmina to Tamil Nadu's Kancheepuram Silk, and from Gujarat's Surat Zari to Assam's Muga Silk, have substantial economic significance on both the local and worldwide markets. India is a country that is rich in traditional fashion assets. GI provide the protection for the 10 years that can renewal without any limitation which is very advantageous to the particular state where it granted the GI tags.GI help the traditional skilled worker to showcase their talent in all over the world enhance the reputation of their tradition and culture and it also helps to improve the financial and commercial situation of all the indigenous workers. It helps to create the fair market competition so that third person cannot misuse or sell the design for earning money. In the case of Louis Vuitton Malletier v. Atul Jaggi , The Hon’ble Delhi high court emphasis that the trademark not only to protect the brand name and logo but also it protects the distinct features of the product.

THE SEMICONDUCTOR INTEGRATED CIRCUITS LAYOUT DESIGN

The Term Intellectual Property has much wider meaning former it only provides the protection in terms of trademark, copyright, patent but now it includes all the trade secret, layout design and etc. Under this act the layout design i.e., floor planning or mask layout can be registered and protected under the Intellectual Property.

INTELLECTUAL PROPERTY PROTECTION IN SMELL MARK

When it comes to protecting Smell mark, the framework of intellectual property law allows for the adoption of a range of different ways. Copyrights, trade secrets, and trademarks are all examples of strategies that are included in the aforementioned approaches. The product must also have commercial value, continue to be relatively obscure, and be susceptible to reasonable measures that are designed to ensure its secrecy in order for it to be considered a trade secret according to the definition provided by legislation. Trade secrets are rarely protected by federal law in the United States of America on the other hand, the Trade Secrets Directive that was recently proposed by the European Union suggests that trade secrets, which are considered to be intellectual “assets,” should be protected “as a supplement” or “alternative” to traditional intellectual property rights (such as patents and analogous mechanisms), rather than being protected as “formal” intellectual property rights. The Cosco tennis ball is one of the landmark case i.e., registered scent brands that is acknowledged the most widely all over the world. In the year 1999, the Community Trademark Office was presented with a proposal that went completely against their expectations. The office was given the responsibility of evaluating and replying to the query that was made questioning whether or not a tennis ball maker may register the aroma of freshly cut grass as a trademark. After coming to the conclusion that tennis balls could be recognised by their genuine and legitimate trademark, which is the scent of freshly cut grass, the Board made the decision to approve the appeal. This was due to the fact that by that point in time, the distinctiveness of the organization's goods had already been established to a significant degree. In the well-known Sieckmann case , a trademark application was submitted to the German Patent Registration office in order to obtain protection for a scent that was offered in the form of a chemical formula.The court came to the conclusion that it would be impossible to use a graphical depiction of the chemical formula as a direct identification due to the fact that it lacked clarity, impartiality, and correctness. This conclusion was reached after the court conducted a comprehensive review of these criteria. As an additional point of interest, the court came to the conclusion that verbal description was not admissible throughout the proceedings. There is a degree of ambiguity around the inclusion of the phrases "aroma" or "smell" in the definitions of trademark 70 or mark 6 in India. In India, the situation is exactly the same as it is elsewhere. On the other hand, the constraints do not completely exclude the possibility of concealing smell or perfume through the use of disguise. In spite of this, in order for the scent or fragrance to be eligible for registration under the Trademark Act, it is absolutely necessary for it to be described in writing and graphically depicted. To give you an example, the aroma that is released by washing powder that has a strawberry flavour may be defined as the “strawberry scent emanating from clothing after each wash.”

CONCLUSION

As we all know the intellectual property right are very important for preserving the uniqueness, distinctiveness, originality, ingenuity of the brands and maintain the goodwill and reputation in the market. These rights are covering wide range of the protection such as copyright, trademarks, patents, design rights, and geographic indicators and etc. As we discussed above about the lacunae of the legislation. Thus, it imperative to note that efforts need to made for expedite the registration process and to strike a balance between the interests of designers, customers, and fair competition. In my suggestion if we deployed the AI and technology to identify and prevent the counterfeiting of the product, it will be helpful to eradicate the Infringement in the fashion Industry. The constantly changing fashion sector is necessary to promote innovation, safeguard originality, and support the long-term development of the global fashion economy.

Author : Sachin Raj, in case of any query, contact us at Global Patent Filing or write back us via email at support@globalpatentfiling.com.

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