- Protection under the Copyright Act, 1957
The Copyright Act and Designs Act overlap each other on the issue of design protection. A fashion design may get copyright protection as per the following:
-A fashion design, which can be registered as “design” under the Designs Act, 2000 but not registered, will get copyright protection under the Copyright Act, 1957. Copyright in fashion design, in this context, will subsist up to the 50th reproduction by an industrial process of the article to which design has been applied.
-Fashion design which is an original artistic work and not capable of being registered as “design” under the Designs Act, 2000 will get copyright protection in the form of copyright in original artistic work under the Copyright Act, 1957. Copyright in an original artistic work automatically subsists as soon as the work comes into existence and it remains during the lifetime of the author plus 60 years, when published during the lifetime of the author.
In Ritika Private Ltd. v Biba Apparels Private Ltd., 2011, CS (OS) No. 182/ 2011, (India), Ritu Kumar, a leading fashion label, complained about the imitation of its fashion designs by a company. The Delhi High Court citing the Microfibres Inc. case held that once the copyrighted works of the plaintiff were applied for making of dresses, and production of the dresses exceeded 50 in number, the plaintiff lost in ownership of the copyright works as the plaintiff had not secured registrations of the designs under the Designs Act as implicitly laid down under the Copyright Act. Hence, the plaintiff could not ask for an injunction of the infringing activity and the case was dismissed.
- Protection under the Trademarks Act
A trademark is any term, name, symbol, design, or color combination that is used to differentiate and identify products in commerce. For instance, the “distinctive Gucci GG Logo” and the “Gucci Trademark” differentiate Gucci bags and clothes from those manufactured by other firms. A trademark can assist to preserve a brand’s prestige premium and can be extremely valuable.
The Hon’ble full bench of Delhi High Court by 2:1 majority in the landmark case of Micolube India Ltd. v. Rakesh Kumar & Ors. 2011, CS (OS) No. 1446/ 2011, (India) has increased the scope of trademark protection for design. It was held that if a fashion design is registered under the Designs Act, it not only gets protection under the Act but can also be protected by instituting an action for passing off provided that the design was being used as a trademark post-registration. This judgment has opened the various ambit of trademark protection in India which was limited before.
In the case of Louis Vuitton Malletier vs. Atul Jaggi & Anr. ,2010, CS (OS) 1419 of 2009, (India), as per trademark infringement and passing off laws, the Delhi High Court, awarded a permanent injunction to the Plaintiff, thereby restraining the Defendants from using, selling any product bearing the famous trademark of the Plaintiff “LOUIS VUITTON”, or any other mark deceptively or confusingly similar to it. The Court further directed the defendants to destroy the goods that were seized by the local commissioner on a particular date, in the presence of the plaintiff or any representative of the plaintiff. Additionally, the Defendants were also directed to bear the costs.
Despite several legislations, unlawful copying, piracy, and other acts cause an infringement of intellectual property. The smaller fashion houses and designers suffer due to the existing loopholes in IPR and the lack of funds to receive the same. It is very important to make the counterfeiters aware of what wrong they are causing to the original designers. Apart from that, even designers and textile businessmen are supposed to be told where they go wrong and how they should strategize their work accordingly. Also, the one who purchases pirated goods should be made liable along with the sellers. In countries like France has similar laws where even the person who consumes pirated goods is punished.
There is also a need to do specific changes in India’s current intellectual property system to make it more ideal to defend fashion design from piracy. Most importantly, a distinct definition of “fashion design” should be included in the Designs Act, 2000. And this definition should assist the whole appearance and overall look of a specific piece of attire or article of clothing as against the current definition under Section 2 (d) of the Act which secures every part of an article of clothing individually. Secondly, a simplified procedure for design registration should be made under the designs Act, 2000 as the present procedure is a tedious one and does not suit the needs of the dynamic fashion design industry. The incorporation of these suggestions would certainly make the current regime more effective to deal with the menace of fashion design piracy.