Tuesday, December 1, 2009

Intellectual Property Protection of Fashion Designs is a big challenge

Indian fashion design industry is set to grow much faster than projected and likely to touch Rs.750 cr. by 2012  because Indian companies heavily investing big sums in the industry, consumer increasingly shifting focus towards designer wear, exposure to western media and readily available of designer wear in the shopping malls. The Indian fashion market is growing better than ever. The numbers of "Fashion Weeks" in a year are growing in the country. Latest designs by Indian fashion houses have done well abroad. Since fashion is not just restricted to apparel but also extends to luxury goods, better standards of living in the country have meant a greater demand for the luxury goods. But, Intellectual Property Rights (IPR) have been a burning a issue in this sector. Fashion designers have frequently complained about their designs being copied without their permission. Such so-called piracy must be stopped as it is plaguing the growth of this industry.

Applying IPRs is tricky when it comes to fashion. Generally speaking, IPRs are granted to the author or creator of a work to reward investment and encourage creativity with a monopoly right. But IPRs mustn't unreasonably restrict the ability of others to develop new ideas and produce new works, so the scope of the monopoly is limited in some way, usually by time. The scope of copyright protection depends on the depth of originality of the work, while the scope of design rights depends on how novel the design is compared to the "state of art." But because many fashion items have certain fixed parameters  a dress must fit the body, a bag must have handles  there are substantial limits on the legal protections available to designers. But the trickier issue is how to deal with what the fashion industry calls 'inspiration.'However, one could reasonably argue that this simply gives affluent consumers more reason to buy new and different things, which puts more pressure on fashion houses to innovate, driving the industry forward. Certainly, this system of inspiration can be seen as a positive even inherent part of the fashion industry. But it should operate on fair terms.

Fashion is an extremely fast-paced business, with very short periods for recouping costs. At first, this would seem to bolster the case for stronger, short-term legal protections against stolen 'inspiration.' But on closer inspection, these kinds of copycats can actually contribute to the creativity and innovation that drives the industry.

In the fashion industry, the copycatting of designs is a not a simple issue. Accusations fly in all directions: luxury houses accuse high-street brands; artisans accuse fashion houses; and fashion houses accuse other fashion houses.

This is not a new problem. Since their inception, houses have struggled with fashion espionage. In the past, fashion companies tried to maintain strict control over their intellectual property, not through an assertion of legal rights, but by physically hiding their designs from competitors. Today's fashion world is faster and more transparent than ever, blurring the line between what is 'copying' and what is 'inspiration' and putting new pressure on fashion houses to protect their intellectual property.

Furthermore, it can be difficult to prove claims of copying in court, because the legal process involves a subjective comparison of the copy and the original by a judge trying to put himself in the shoes of a typical customer. Indeed, the majority of cases are settled out of court, leaving the industry with little precedent on which to build legal certainty.

Just as design patterns form the foundation of good fashion design, IPR frameworks enable fashion businesses to defend their financial interests and protect their designs. Copying is wide spread in the industry with many designers thinking it is ok, as long as you change the item a certain percentage.

Design registration should be sought by designers wishing to mass produce or make multiple copies of products. A designer must not disclose their design prior to lodging a design application, as disclosure may prevent registerability. 

Trade Marks Designers can use trade mark law to protect not only logos and brand names, but also other distinct features of a product. For example, Bettina Liano has registered the distinctive pocket stitching on her garments as a trade mark, while British fashion house Burberry holds trade mark rights in both the trade mark "Burberry" and the Burberry check pattern. Burberry has enforced its trade marks in many jurisdictions against counterfeits including a recent action in the US District Court.

Copyright law provides limited protection for a designer's designs. Copyright does not encompass ideas, information, styles, techniques and names; it may however include original artistic works such as sketches and patterns. However, this protection is limited as copyright law will not protect the "reverse engineering" of a garment. 

One-off fashion designs, such as an haut couture item and jewellery items may be protected as copyright works if they can be shown to be "works of artistic craftsmanship. However, if you intend to mass-produce, make multiple copies of the items or use the items on a commercial scale, you should rely on design law rather than copyright law. 

Copyright And Designs overlap between copyright and registered design protection. This is a complicated principle which reflects the policy behind the legal regime which establishes registered designs. Copyright in a paper pattern for a design; say a bikini design, may be lost once bikinis are made to that design unless the relevant bikini design is the subject of a registered design. In other words, unless a clothing pattern is the subject of a registered design, third parties may be able to copy that pattern without infringing the designer's IP rights. Patents Designers may be able to patent new, inventive and useful devices. Artistic creations cannot be patented and therefore patents are not widely adopted by designers.

International Protection The publication of the guide corresponds with the push by designers' internationally for a more uniform approach to IP in order to protect designers' rights. There is no blanket method currently for the world-wide protection of designs despite the existence of an International Convention for the Protection of Industrial Property which currently has 100 signatories.

Here, perhaps fashion can learn a thing or two from the music industry. With music, 'collecting societies' ensure that artists and rights owners are fairly remunerated when their works are played or more relevant to fashion sampled. The "sampling" of a fashion design could go through a society that's specifically set up to collect and distribute remuneration. Such an approach would not grant a right of reproduction, but allow designers, fashion houses, artisans, and others to draw inspiration from each other on fair terms.

Furthermore, why not recognize "moral rights" for fashion designs? As well as economic rights, copyright law grants something called a "moral right." This is essentially the creator's right to attribution by name when his work is copied.

Moral rights are not currently granted by design right law, but in the world of computer software development, "open source" licenses often contain attribution of authorship. Adopting a similar concept for the fashion industry would obligate "samplers" to not only pay a fee, but give fair attribution to the original designer, channeling potential customers towards the source of the design. If last century's strategy of strict controls on fashion IP is failing, perhaps an "open source" system that acknowledges and promotes the sampling of inspiration based on fair remuneration and attribution could be the answer for the new century.

Dr.Tabrez Ahmad,
Associate Professor of Law,
KIIT University, Bhubaneswar, India,
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