French designer Christian Louboutin is almost on the verge of loosing the trademark to his distinct red soles. On the other hand Indian designers, called out for stricter Intellectual property laws for the Fashion Industry by copyrighting their whole collections.  Ubiquitous incidents like these beg serious comprehension of the legal status, of the fashion industry.

Intellectual Property Laws of the Fashion Industry

From apparels and foot-wares to accessories and handbags, the fashion industry is perhaps one of the largest and most diverse sectors of creative works. However, the Intellectual property laws all over the world somehow do not categorically include these works under the wings of its protections.

Copyright laws of India flowing from the Copyright Act , 1957, manages to protect the artistic works in designs after they have been reduced to tangible medium. Section 2(c) of the Act defines ‘artistic work’ which includes artistic drawings, however does not specifically mention designs etc.  Section 15, is a special provision for “copyright in designs registered / capable of being registered under the Designs Act, 2000”, which provides that the copyright, to a design which has been applied to be industrially reproduced more than 50 times, shall cease to exist. On the other hand the Design Act, 2000, in its definition of ‘design’ under section 2(d) excludes ‘artistic work’ under section 2(c) of the copyright act. Protection under the Design Act provides a protection of 10 years extendable by 5 years.

Commercial exploitation by the owner of the design restricts its protection under the Copyright Act. In Ritika Private Limited Vs. Biba Apparels Private Limited , after referring to the objectives of both the Acts and Microfibres Inc. Vs. Girdhar & Co. & Anr., the court emphasized…

If the design is registered under the Designs Act, the Design would lose its copyright protection under the Copyright Act. If it is a design registrable under the Designs Act but has not so been registered, the Design would continue to enjoy copyright protection under the Act so long as the threshold limit of its application on an article by an industrial process for more than 50 times is reached. But once that limit is crossed, it would lose its copyright protection under the Copyright Act. This interpretation would harmonize the Copyright and the Designs Act in accordance with the legislative intent.”

Considering the indigenous traditional textile skills of India, the Geographical Indications of Goods(Registration and Prohibition) Act, 1999 also protects the Textiles vis-à-vis the texture and motifs on fabrics used for fashion apparels.

In the United States protection is accorded under the copyright laws only as original design of a useful article which makes the article attractive in appearance to the purchaser. However fashion designs have been denied proper protections, because of the ‘utilitarian functions’ of clothes. The courts have moved back and forth on the topic. In Kieselstein-Cord v. Accessories by Pearl, the Second Circuit Court found the designs, of the said buckle to a belt in the case ‘conceptually separable’ for its function and capable of existing independently from the utilitarian aspect. Consequently, designs printed on fabrics and silk screen paintings on women’s apparels have found protection in a few cases.

Trademark and Trade-dress laws would require a design to be non functional and either has a distinct meaning or has a ‘secondary meaning’. However, acquiring a secondary meaning usually takes time.  The Fashion industry has a low IP- equilibrium, which is the low protection the industry has under all forms of Intellectual property laws.

Protection – ‘To Be or Not To Be’

According to Kal Raustiala and Christopher Sprigman, conventionally piracy or copying is a serious threat to creativity and free flow of ideas. However, the fashion industry’s innovations and artistic abilities has not really suffered this crippling effect. According to them the fact that fashion industry suffers from a low IP- equilibrium, might have just worked into the economical growth of the industry. It creates a’ Fashion Paradox’. This could be explained with the help of the economic concept of ‘positional goods’. Positional goods are commodities whose value is intertwine with the perception of its value. Fashion articles are positional goods. Part of their ’fashionablity’ is the appeal that only a few people can afford it or know about it. Part of this positionality depends on the prestige of the brands and the styles. The positionality diffuses as it is adopted by a broader crowd.  This diffusion is sped up by cheaper counterfeit or derivative designs available widely. The diffusion amongst the masses erodes the positionality, forcing fashionistas, or the early adopters to move on to a new trend or design in an effort to be distinct from the masses. This in turn forces designers to innovate or create new designs to feed the Fashion cycle.

As explained in their paper of The Piracy Paradox: Innovation and Intellectual Property in Fashion Design, they term this as induced obsolesces. Which forces the designers to keep innovating and designing new items to be relevant and avoid being obsolete, in turn is benefitted with huge profitable turnouts. Thus, the copying and appropriations is taking the fashion industry to new heights.

Similarly, the concept of Bridge line could also induce obsolesces. Bridge lines, is when a single firm introduces cheaper lines under one umbrella brand. The Armani brand is an example of bridge lines which self copies and introduces cheaper versions, like Emporio Armani,  to curb brand tarnishing due to appropriation.

As designers create new distinct designs, some stand out and emerge to be fashion trends of the season. This is called ‘anchoring’ which is propelled by free copying.  Free appropriation helps to convey to the masses the trends of a particular season.

The Era of Fast Fashion

However, a low protection of designs and complicated dissection of their whole creative work still remains a problem for fashion designers.

Fast fashion giants are built on a business model based on risky appropriation of runway designs. Fast fashion retailers usually copy un-copyrightable elements from designs to stay out of infringement accusation as well as maintain prestige of its own. They tend to copy shapes and aesthetics to avoid being a carbon copy but look like couture/high end designs Forever 21, for instance has been sued over 50 times for stealing prints and designs of Anna Sui, 3.1 Phillip Lim, and Diane Von Furstenberg. Recently, a nonprofit Hustle Kindness, working for children’s health has accused Forever 21 for copying their Trademarked logo. Though no legal case has been yet made, the nonprofit has gone to social media with images comparing both the versions of the T-shirt.  Forever 21 has followed a simple method of settlement of infringement cases which includes a non admission of guilt along with financial compensation to the designers and non disclosure.

Conclusion

With big names like Christian Louboutin , fighting copycats and infringers since a long time. Like in 2012 the Cour de Cassation in France, sentenced Louboutin to pay Zara £2,500 when Louboutin tried to bar Zara from selling a particular pair of $70 red-soled heels because they might create “consumer confusion.” In that, case the lower court had opined that the Louboutin’s trademark registration was too vague (it was suggested that he might specify a Pantone number instead). Or in Christian Louboutin S.A. v. Yves Saint Laurent , where YSL was accused of infringement of the trademarked red soled shoes in their monochrome collection (which consisted of Tribute, Tribtoo, Palais and Woodstock styles of monochrome coloring (i.e. red sole, red shoe; purple sole, purple shoe)). The Second Circuit Court of Appeals accepted that the Louboutin  “Red soles” weren’t inherently distinct however, had acquired secondary meaning. Though is further held that the secondary meaning didn’t extend to monochromatic shoes and only for shoes with contrasting upper part of the shoes, restricting its trademark, only to shoes with contrasting with adjoining ‘upper’ of the shoe. In current case against Dutch retailer, Van Haren. The Rechtbank Den Haag (the Dutch Court) has referred to the CJEU asking whether the concept of ‘shape’ is limited to the 3D properties of goods (contours, volume etc.), or whether 2D properties, such a shape’s colour should also be taken into account when assessing the applicability of Art. 3(1)(e)(iii) of the  Directive 2008/95. The CJEU AG has assessed that whether the shape of a sign gives substantial value to the goods, the assessment must be limited to the intrinsic value of the shape and the reputation which results from the trade mark owner’s promotion of the sign cannot be considered.

We cannot help but accept that copying does in fact affect the creativity and artistic nature of the Fashion Industry. But, whether the answer is a stricter IPR regime or not needs more thought. Whether stricter laws would just be playing into high end fashion labels? Or would a stricter regime of IPR in the fashion industry be beneficial or just kill the quick creativity of the industry all together? Whether the fashion industry deserves dedicated laws? Or maybe bring in some innovative ideas like United Kingdom’s Police, Intellectual Property Crimes Unit (PIPCU), a one of its kind unit , which tackles supply market. They specifically organized “Operation Ashiko” to close down rouge websites selling fakes online.

These are certainly a questions to ponder on since the industry has a huge worldwide turnover of more than 300$billion.

References

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