Fashion Law in India: A comparison.

FASHION LAWS WITH COMPARISON

Author: Mr. Pranav Kushal, Bahra University.

INTRODUCTION

Fashion is a massive industry that strives in a competitive global despite minimal legal protection for its creative designs. While a large number of people dismiss and show disregard towards the trivial and ephemeral development of fashion around the world. The fashion industry is a global phenomenon with an international language understood by millions of people. Up to the date, fashion brings more and more fans willing to pay a large sum of money to feel and to look about their own appearance and adornments. This increased interest has caused the fashion industry to face many challenges that were not there in the past. Consequently, it becomes necessary to set the norms as well as the rules to make the fashion industry bigger and to conduct more effective business. As a result fashion laws came as a brand of new legal sanctity that involves several and special issues of Intellectual Property Rights particularly trademark law, copyright law and at times it also includes the Patent and Trade secrets. Trade secret and patent becomes relevant when the fashion industry has developed a new manufacturing process in consumer’s clothing, footwear, and other accessories. Fashion is a billion-dollar industry in different countries including the United States of America and India.  Fashion is one of the world’s most creative and inventive industries around the world. Its major output of global business can be seen in the United States of America whose total profit is more than 200 billion dollars in a year. Every individual wears clothing and inevitably participate in fashion. But fashion, on the other hand, is subject to periodical change with the advancement of time. Fashion has provided economic development based on the principle of consumption and conformity. Social thinkers have considered ‘Fashion’ as the window of social change. Fashion has also seen to be embodied with the representative character of modernity and reflect on symbolic meaning and social ideals. It is therefore hard to think and imagine a social life that does not exhibit fashion in any way. In the field of legal realm and regime, the term ‘fashion’ has been protected and secured under the shade of intellectual property.[1]

FASHION AND LAW

The term fashion has a different meaning for different people. “Fashion is an art or an individual statement of expression for a different generation.” French Fashion designer Coco Chanel defined fashion in the following words:[2]

“Fashion is not something that exists in dresses only. Fashion is in the sky, in the water, in the street; fashion has to do with ideas, the way we live, what is happening”.[3] This definition of fashion is true and wide in itself. Fashion cannot be defined solely by our clothing, but it can also be conveyed the way we carry ourselves and the personality we all have. The word law, on the other hand, implies to have the sovereign power of such rules of conduct expressing the will of the ruling class as established by the legislature or sanctioned by the government. The definition of law given by the Blackstone is of utmost importance in this regard.

“A rule of action prescribed and dictated by the superior which some inferior is bound to obey and is applied indiscriminately to all kinds of action whether rational or irrational.”

BACKGROUND OF FASHION LAW

Fashion law is an area of law that deals with the various segments of intellectual property rights such as copyright, patent, trademarks, trade designs, etc. It was in the year 2008, Susan Scafidi, the United States law professor for the first time offer a course in fashion law and after that, this subject of fashion law has been recognized as a distinct field in the sphere of law. Although a highly focused special fashion law is a quickly growing field with the advancement of new technologies. Several American, as well as European schools, have dedicated programs related to fashion law. But if we look to the other side, we will find Paris, France as the historical capital of fashion in the world. The fashion trend formed an important aspect of the French lifestyles in the 17^th century. The trend has also witnessed circulations of cheaper versions of fabrics. The changes were brought in the year 1920 when fashion was easier to copy and more accessible. Copying continued to be the biggest problem in the field of fashion. The copyright extensions find its roots in the English and French Copyright system that protects the fashion designs. However, the patent law was not designed to protect fashion and its culture. Designers need a system to protect the designs before and after being made public where imitations would seep into the market undercutting the designer’s price and creating a backward bending curve as far as the demand for designer’s apparel was concerned.

FASHION LAW IN UNITED STATES OF AMERICA

Fashion law in the United States of America has traditionally and historically been denied copyright protection. The basis for this denial lies in the belief that garments and clothes are items of utility devoid of any copyright elements. Fashion has been an integral part of the copyists’ regime although it stands more in current years.  In the United States of America, several forms of intellectual property are available for designers. Under the trademark law, a designer may protect his fashionable goods by investing in a distinctive logo and trade name that the consuming public recognizes as an indicator of the fashion article’s resource.[4]  A designer can seek trade dress protection in the United States of America in the overall look of the product to the consumers. Designers may apply for the design patent which protects new and original designs of the manufacturer. The most recent protection that is granted is the Innovative Design Act of 2012. This act grants protection to the fashion designers for a period of three years and would prohibit the claim that fashion design was copied from a protected design.[5]

FASHION LAW IN INDIA

Noting the rights guaranteed in the United States of America and in the European countries, India stands not far behind. The Fashion Foundation of India a newly constituted body consisting of the leading designers from India seeks the protection of the Intellectual Property Rights against infringement and rampant copying. The intellectual property regime in India provides for the protection under the design act 2000, the copyright act 1957 and the Geographical Indications of Goods (registration and Prohibition act) 1999. Although there seem to be three different legislations that protect the regime of fashion apparel and designs. The artistic works in the sketches of the designs are protected under the Copyright Act 1957. The Design Act 2000, provides protection to the non-functional aspect of n object having the visual appearance which includes the features of shape configuration, pattern, the composition of line and colour pattern. The third schedule of the Design Rules 2001 provides an exhaustive list of products and articles in respect of which an application can be made to the controller. Such design right remains in force for a period of ten years extendable to certain conditions for a total period of 15 years.

CONCLUSION

“Fashion goes only in one direction i.e. forward and I am a firm believer in thinking that way too”-Anna Wintour

The recent changes in the fashion industry have drawn attention from the intellectual point of view at first sight. Time goes by and society is in constant development with growing needs, the different jurists and scholars find the fashion law as one of the relevant entities creating intellectual property rights as the sole protector of fashion designs. Fashion companies must be aware of the different levels of protection granted to different articles and fashion trends.

[1] Artz Ash K and Kolsun B, ‘Fashion Licensing’, Fashion Law: A Guide for Designers, Fashion Executives, and Attorneys (2nd edn, Fairchild Books 2014).

[2]  Fashion Law Institute’ (Fashion Law Institute, 2016) http://fashionlawinstitute.com  accessed 21 January 2019.

[3] Fashion Law Institute’ (Fashion Law Institute, 2017 http://www.khorshidchehr.com/what-fashion-is accessed on 26 January2019.

[4]  Michael p. Ryan, PhD, introduction: intellectual property and the creative and innovative economy,

http://www.uspto.gov/ip/events/uspto_mena_booket_introduction.pdf accessed on 27th January 2019.

[5] Fashion Law Institute’ (Fashion Law Institute, 2017) http://fashionlawinstitute.com/fashion-law-pop-up-clinic  accessed 25 January 2019.