EXISTENCE AND SCOPE OF FASHION LAW IN INDIA

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‘’Fashion is not necessarily about labels. It’s not about brands. It’s about something else that comes from within you.’’  – Ralph Lauren

Fashion is a whole new game in the present scenario. Human minds, all over the world, are coming up with beautiful and innovative ways of dressing. Fashion will prevail as long as people breathe on this planet. Now-a-days fashion influencers on social media has only given more and more reasons to buy variety of clothes along with options. Wikipedia defines Fashion Law is a field encompassing issues that arise throughout the life of an article of clothing or a fashion accessory. It is a distinct field in the sphere of law. 

In India the designers and the artists associated with this field are getting recognition worldwide for their work.  Indian designers like Falguni and Shane Peacock have started dressing some legends like Beyonce.

EXISTENCE

India is a country of creative minds. It is one of the largest producers of textiles in the world. The market size of the Apparel market with respect to Domestic Consumption is USD 74 Bn and with respect to exports is USD 16.1 Bn.1Fashion industry has seen an immense growth since the onset of the 21st century with designers working at their best to top the game. India has it all when it comes to this industry, right from the unique and creative concepts to labor and raw materials required to give the concepts a physical form. There also exists a legal specialization to solve the issues surrounding the garment (from concept to the runway).

Fashion law in India is covered under Intellectual Property Laws i.e., IP Laws. The acts which govern IPR in India are The Designs Act 2000, The Patents Act 1970, Trade Marks Act 1999, The Geographical Indications of Goods (Registration & Protection) Act 1999 and The Copyright Act 1957. All these acts have widened the scope of Fashion Industry.

The Rajiv Gandhi National Institute of Intellectual Property Management in Nagpur is a National Centre for training, management, research and education in the field of IPR.[2] The dynamic and competitive nature of the fashion industry, made the professionals associated with this industry, realize the need for protecting their rights from any kinds of infringements. The Fashion Foundation of India is a body consisting of the leading designers from the country to seek protection from infringement and copying.

Famous fashion designer Rohit Bal had his whole collection copyrighted after which other designers like Anita Dongre and Anju Modi too followed his footsteps. In this internet era, where every piece of art put up on the internet is available to every human with internet, possibility of plagiarism is at its peak. Section 22 of The Copyright Act 1957 protects the rights of the copyright owner during his lifetime and 60 years more after his death. U/s 11 of the Designs Act 2000, a registered design is copyrighted for a period of 10 years from the date of registration of the design which can be further extended for a period of five years.

Although the Copyright Act 1957 provides with longer duration of protection, there are certain special provisions which are to be followed. Section 15(2) of the Act states that, copyright in any design, which is capable of being registered under the Design Act, 2000 but which has not been so registered, shall cease as soon as any article to which the design has been applied has been reproduced more than 50 times by an industrial process by the owner of the copyright or, with his license, by any other person

The four pillars of Fashion law are intellectual property, business and finance, including areas such as investments, employment law, and real estate, international trade and government regulation, including sustainability, piracy, and issues related to wearable technology and consumer culture and civil rights.

Ritika Private Limited v. Biba Apparels Private Limited[3]

In the above case, the Delhi High Court held that there was no copyright infringement because the copyright in the plaintiff’s design ceased to exist as it had been reproduced more than 50 times by an industrial process as per section 15(2) of the Copyright Act, 1957 and also the designs of the plaintiff were not registered under the Designs Act 2000.

Rajesh Masrani v. Tahliani Design Pvt. Ltd[4]

The court held that, in order to claim any damages against copyright infringement, registration of work was not mandatory in this case.

Dan Von Furstenberg invented the wrap dress in 1973/73.

The only legal solution to ensure the protection of the designs od fashion designers is by registration of the designs. Piracy of a registered design is prohibited under section 22 of the Designs Act 2000. The person who knowingly sells the article on which such pirated design exists is also liable for piracy of design.[5] Hence retailers who sells articles containing pirated designs can also be punished Right from the concept to the branding of the apparel is covered under IP Laws. Fashion is not only about designing but there are many other factors like marketing, retail, manufacturing etc. apart from the IP laws there are many other laws which come into picture like Labor Laws, Corporate Laws etc. (depends on the issue)

Plagiarism demotivates the brightest of the bright minds may it be any sector. Knockoffs have been really common now a days in this era of digitalization. Social media handle name @Dietsabya inspired by @Dietprada calls out such copied designs or anything found to be plagiarized through his account. Also, it has been very common now adays where established designers copy the designs of the fashion designing students and sell it under their brand name.

The Fashion Designers also are unaware of the rights available to them to be protected from such issues.

The sketch of the design can be registered under artistic work under Copyright Act, 1957.

The Designs can be protected under the Designs Act 2000, under class 2,3,5,10 and 11 of III Schedule of the Design rules 2000.

Even the color combinations can be protected under Copyright Act 1957.

Fabrics and the materials used can be protected under the Patents Act 1970. The logo designs can be further protected under the Trademark act 1999.

There is no such act which protects each and everything in fashion. Hence different acts provide with the laws which protects different aspects of a garment or other aspects as such.

The registration process of a design in the country is time bound.

The Geographical Indications of Goods (Registration and Protection) Act, 1999[6] provides protection to any agriculture goods, natural goods or manufactured goods or any goods of handicraft or goods of industry including food as geographical indications.

The IV schedule of the act states the list of goods that can be protected under this act6 which includes the protection of fashion apparels vis-à-vis the texture and artistic value of the fabric which is used to create any such apparels or accessories.

Some registered Geographical Indications of India are Kashmir Pashmina from Jammu & Kashmir, Pochampalli sarees from Andhra Pradesh, Mysore silk from Karnataka, Kanjeevaram sarees from Tamil Nadu, Banaras sarees and Brocades from Uttar Pradesh etc.[7]

As per Copyright Act,1957 a design registration and copyright cannot co-exist over an article.

Fashion Foundation of India is also setting up a legal cell to provide assistance to the design houses with licensing, arbitration etc.

SCOPE

Fashion is a growing industry and will never stop growing unless people stop wearing clothes, which is never. This industry as a whole is huge which includes design houses, wholesalers, tailors, industry workers, models, modeling agencies, retailers, photographers, hand craftsmen etc.

Any fashion lawyer should know the industry inside out. The person should have keen interest, passion and knowledge about anything and everything associated with this industry. Legal knowledge about this glamorous industry is what makes the shine in the eyes of his clients on the professional front.

Some brands and designers have their in-house team of fashion lawyers and some outsource to legal firm which deal with the same. Simon Bennett, a partner at Fox Williams LLP quotes,” A good fashion lawyer has to talk the talk of fashion, but also walk the walk on potentially complex legal issues, such as Intellectual Property Law and Contract Law.”

It is not always very glamorous to be a fashion lawyers but the lawyers in this field have clients who actually help and understand the nuances while dealing with complex issues which turns out to be of great help. Fashion law is a field which is covered by very few institutions for aspiring students around the world.

The Fashion Law Institute is the world’s first Centre dedicated to fashion law and the business of fashion. Professor Susan Scafidi founded the institute and is its academic director and also created the first fashion law course in 2006. The institute is headquartered at Fordham Law School.[8]

Fashion industry is not all about designer clothes, hance fashion law is not all about the copyright and the IP laws. There are various factors attached to it when we speak of it as a whole industry. In this era of digitization and internet, there is a rise in the competition in the market and specially the Indian markets. This is where competition law comes into picture. The fashion industry is a revenue creating market and hence business-related complex challenges can be expected at each and every stage, may it be after or before sales. There are huge corporate companies as investors of this industry who operate on the other side of the glitz and glamour that is shown. The clothes of the biggest brands are made by workers who work for low wages and work under poor working conditions. Many articles and reports have brought up the issues where the female workers are abused on a daily basis mostly in Asian countries and all of these happens because of the fast fashion and its excessively ambitious targets set by companies like H&M and GAP.[9],[10]10

In a recent incident, a female employee of H&M supplier’s factory in Tamil Nadu was found dead was later found out to be harassed and more than a dozen employees have spoken about being harassed in the work place.[11] Lucy Siegle, a journalist and author has rightly said, “fast-fashion isn’t free. Someone somewhere is paying.” All these disturbing issues persists behind the glitz and glam that is portrayed. And fashion lawyers are expected to deal with these challenges and problems. Though all these fast fashion huge brands are based abroad, issues faced are by the people based in this country.

Fashion lawyers cover activities like drafting, negotiating contracts and licensing.  Design registration, corporate governance, labor laws, it laws and import-export regulations.

Firms like Kashyap, Partners & Associates LLP provide with all the necessary legal works required in the fashion industries.[12]

Fashion law and fashion lawyers make sure that the professionals associated with this industry are duty bound towards each other. Contracts made between the different roles makes it give the whole work a legal and more serious view.

This pandemic has only made the issues of knockoffs and copying more complex and common in the markets. On social medias you can see pop ups by some small businesses offering the perfect lookalike of the outfits which were designed by some best designers in the country, which took months and months of hard work being offered for less than one fourth of the amount.

It is really difficult to catch hold all the offenders as most of them cannot even pay half the amount of penalty. Generally big fishes are the ones who face the danger of the knockoffs and can easily be held liable of the copying, thanks to accounts like Dietsabya.

Even the small businesses suffer due to the copying. Many times, it has happened that well-known brands and designers have come up with something new and creative but was not known to many about the same. But when the well-known in the industry copied the same, he took credit for all of it, which is wrong. In countries like France, customers are held liable for buying counterfeit products. (in India, owners have the right to move to the court). In fashion, be it big or small businesses, every professional should be able to seek justice and rightful recognition.

Indian artisans are purely gifted and for so many years have been only using this gift to work for top designers and on a very minimum wage or in some cases negligible, when the reality is that the whole outfit would be a nothing if not for these talented and gifted craftsmen.

Hermes International & Anr. Vs. Riyaaz Nasruddin Amlani & Ors.

Delhi High Court held in favor of Hermes stating that,” The power of seemingly naughty or irresponsible suggestion can sinister to the well-cultivated image of quality and class; it can be ruinous to the brand itself. Therefore, the petitioners’ discomfort, anguish and grievance must be remedied to some extent by the imposition of punitive cost”.

 Some of the firms in India which has been dealing with fashion laws are Anand & Anand, Nishit Desai Associates, Khurana &Khurana.

Sustainable fashion also has a market with all the thrift stores coming into picture in the market. Fashion industry produces the maximum number of wastes and pollutants in the environment. Mostly the offenders are the ones in the fast fashion market. Hence the Environment Law comes into picture.

Counterfeit products look convincingly real with so much technology betterment. Al Qaeda and other terrorist organizations fund themselves through the sale and trafficking of counterfeit goods.[13] In 1993, officials raided a warehouse full of counterfeit products in Manhattan they found drugs sewn in the lining of the handbags. The difficulties faced by the workers who play a major role in the industry work in terrible condition and with pay less than the industry standards. Even the biggest brands employ underage children.

CONCLUSION

India is a land which accommodates brains which amazes the whole world with its work and its capability of doing wonders. Fashion in India is growing like it has never grown before. With social media and the influencer era, things are changing. The laws supporting fashion industries in The United States of America and France are way more advanced than in India. The designers and all the professionals associated with this field should be aware of their rights as well as duties. All these professionals should be aware of the laws that exists to serve them justice and protect their creativity by giving them due credit. The laws of the country though do not address some of the issues faced by the people working in this field and should work towards creating better legal support for the work they do. The challenges in this field are complex hence the laws to be made has to cover all the aspects.


[1] https://static.investindia.gov.in/s3fs-public/2020-07/Textile Brochure.pdf

[2] https://ipindia.gov.in/about-us-rg.htm

[3] https://indiankanoon.org/docfragment/20292476/?big=3&formInput=midas%20hygiene%20industries

[4] https://indiankanoon.org/doc/111285241/

[5] https://indiankanoon.org/doc/1643916/

[6] https://ipindia.gov.in/rules-2002.htm

[7] https://ipindia.gov.in/writereaddata/images/pdf/geographical-indications-registration.pdf

[8] https://fashionlawinstitute.com/about

[9] https://globallaborjustice.org/gap/

[10] https://www.theguardian.com/global-development/2018/jun/05/female-garment-workers-gap-hm-south-asia

[11] https://www.aljazeera.com/economy/2021/2/2/hm-probes-abuse-at-indian-factory-after-death-of-woman-worker

[12] https://www.kpalegal.com/design-registration/

[13] Giambarrese, Nicole. “The Look for Less: A Survey of Intellectual Property Protections in the Fashion Industry.” Touro Law Review, vol. 26, no. 1, 2010, p.243-286. HeinOnline.

Author: Ahalya Unnikrishnan Nair

Editor: Kanishka VaishSenior Editor, LexLife India.

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