The trend of Intellectual Property (IP) protection of apparel is still in its nascent stage in India. Of late the fashion industry in India has seen a tremendous growth. The fashion industry is segmented into categories, which include custom clothing, designer clothing and luxury goods etc. The industry is not just limited to clothing but also extends to luxury items for better standard of living. The main reasons for its rapid growth are awareness of consumers, shift in the focus of consumers towards branded and designer clothes, knowledge of latest trends through media, exposure to western culture, and easy availability of designer readyto- wear garments. Moreover, being up to date with latest fashion trends has now become a culture. Being more fashionable & using luxurious goods has now become a status symbol.
Fashion Industry has long being known for its ubiquitous nature of copying. Even the fashion oriented apparel producers flourish by imitating the designs of the leaders in the industry and take it to the masses at cheaper and affordable rates. This superfluous growth of the industry has given rise to increased concern regarding the IP protection of one’s intellectual innovation and original creativity. The industry people have been found complaining about their innovations being imitated. There are number of IP rights applicable in the process of designing a garment from yarn to an apparel stage. However there are very few designers who are aware of these government enforced incentives of limited exclusiveness born during designing of their apparel.
In fashion industry, where there is a blurring difference between creativity & imitation, the strategic protection of one’s innovation may prove to be a valuable asset and may grant the holder of the right a competitive advantage in the fashion industry.
The conventional argument for IP protection entails basically three schools of thoughts. First, it is often very difficult and a costly affair to fabricate a unique design or textile. Second, once a unique invention is in the market without any legal protection, others would find it easier and inexpensive to imitate. Third, if the law does not endow the inventor with government enforced incentives of limited exclusiveness, the imitator will copy the original creation and will outrun the creator without having to pay any royalty.
Protection through Designs Act
The Indian Designs Act, 2000, protects the features of shape, configuration, pattern or ornament or composition of lines or color or combination thereof applied to any article whether in two dimensional (for example, pattern on a textile) or three dimensional (for example, shape of an apparel) or in both forms, by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye.1
This is the most relevant form of protection available to the Fashion Industry. Designers keep on experimenting with the color, pattern and fabric combinations. This form of IP protection is sought by creators who are planning to mass produce or make manifold copies of their creation. Protection through this act also facilitates the creator in preventing others from infringing his their product.
Protection through Patents Act
The innovative fabrics can be protected through Indian Patents (Amendment) Act, 2005. The textile companies can patent their product if it is novel, involves an inventive step and is capable of industrial application. Many companies have already patented their innovative fabrics, such as Nomex, Lycra and Goretex, which have become a valuable asset for the organization.
For instance, a corporation ‘Aquatic Design2’ patented a layered fabric that has the qualities of being waterproof, breathable and elastic that makes it highly desirable in action sportswear. Similarly, Grindi Srl., an Italian company, obtained a patent for its innovative fabric, Suberis, made of cork, smooth as velvet, light as silk, stain-resistant, waterproof and fireproof.
Protection through Trademarks Act
According to Section 2 (zb) of the Indian Trade Marks Act, 1999, trade mark means ‘a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colours.’ A mark can include a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colors or any such combinations.3
This form of IP protection helps the owner in protecting not only his brand name or the logo that may become a valuable asset to the organization, but also in protecting other distinctive features of their products. For instance, the US Navy recently got a registered trademark on a camouflage pattern used on its uniforms. Bettina Liano has registered the distinctive pocket stitching on the garments as a trade mark, while Burberry holds the trademark rights in both the brand name ‘Burberry’ and their distinct Burberry check pattern. In Fashion Industry the consumers are often willing to pay premium prices for a product of their choice bearing the trademark of their preference.
Lack of IP protection in Fashion Industry
Although the designs can be legally protected via Designs Act & Trademarks Act, the fashion industry can very well survive without IP protection because of two interrelated factors referred to as “induced obsolescence” and “anchoring.”
The induced obsolescence occurs when an apparel or a design becomes out-of-fashion or unfashionable before they actually wear out. Anchoring is the technique through which the designers keep the consumers glued to the latest trends. They anchor the consumers by constantly conveying them what to wear through their fashion shows. Thorough this mechanism the fashion industry indicates that the style has changed and it’s time to makeover the wardrobe.
The lack of IP protection in fast-paced fashion industry and the presence of two interrelated factors actually promote the operation of the fashion industry. In fashion industry, there is blurring of the line between ‘imitation’ and ‘inspiration.’ Imitations of the original creation contribute to the creativity and innovation that drives the industry. It is believed that if IP protection is extended to fashion industry as well, it might hamper the creativity of the designers.
This article presents a comprehensive overview of strategizing Intellectual Property rights in fashion Industry under various sub domains of IP, like designs, trademarks and patents. Although a plethora of IP protection is available to the creators during the process of development of a fabric from fiber to attire phase, in reality the designers seem to be least concerned of the availability of IP rights. The designers producing the facsimiles of the original creations indirectly promote the operation of the Fashion Industry.
Fashion Industry is considered to be a very impulsive sector where more a product is copied the more fashionable it becomes; and in a way this serves to drive the industry. It can be rightly said that the cure may be worse than the disease in this sector