Insights & Research
Nadha Abdul Razack
Legal Analyst I Legacy Partners
“Fashion is only the attempt to realise art in living forms and social intercourse”-Francis Bacon
Fashion designers face a unique set of challenges in protecting their intellectual property. Though a fanciful garment may be the result of a single creative process by the designer, a designer or manufacturer may need to use multiple forms of intellectual property to fully protect the fashion design of that garment. Fashion is not limited to clothing but several aspects such as jewellery, styling, make-up, footwear etc. There is a need for fashion designers to protect their creations from getting infringed.
Intellectual property helps creative aspirants to protect their unique sense of style and functionality ranging for a variety of products. The purpose of intellectual property rights is to protect the expression and not the ideas.
Types of protection
Of the above, trademarks, copyrights and designs are most widely used by designers to protect their work.
Importance of registration: A registered IP can be a valuable commercial asset. A registered IP gives a right to enforce the design against infringement. It also provides an exclusive right to use the design and authorize other people to use the design as specified in the registration. It becomes a personal property and can grow in value and be sold.
Trademark: Trademarks aren’t only applicable for the protection of logos, brand names and taglines, but also for the size, shape, colour and other distinct features of the garment or other fashion products. It can be inside the garment or visible on certain small outside portions like buttons. Trademark make it easier for consumers to quickly identify the source of a given product or service. If there is a word, phrase, or design that is used by the company repeatedly a trademark registration is required so that nobody else uses it.
The law of trademark has led to the introduction of trade dress i.e., the entire image of the product including size, shape, colour or colour combinations, texture, graphics or even particular sales techniques.
Copyright: Copyright provides a good scope for the protection of garments. The Copyright Act,1957 seeks to protect “artistic works”. copyright arises automatically once a work is created. There is no need for registration unlike other areas of intellectual property (IP)such as patents, registered designs and trademarks. however, if you are planning to mass-produce these items, then registration may be the only form of protection available.
Design: In general, a design is the outer look of an article that a naked eye can see. The Designs Act,2000 protects the “original designs” including the shape, configuration, pattern, ornament or composition of lines or colours applied to any article whether in two dimensional or three dimensional or both forms. Considering the fact that fashion design is a sort of design, can be registered as “design” under Design Act,2000.
Patent: A novel or unique invention of fabric is protected under the patent right. Patents are exclusive rights granted for an invention. In short, you will not be able to patent your clothing, accessories and patterns on the basis that they are artistic creations. A patent is a licence only available to completely unique inventions to make, use, or sell that invention.
Geographical Indications: Geographical indications are relevant to the fashion industry in terms of protecting unique handicrafts and fashion articles originating from a specific location and consisting of quality or reputation. Till now about,65 kinds of GIs have been registered in respect of handloom textiles in India like Kasargod silk sarees, Kuthampully sarees, Kuthampully Dhoties and Set Mundu from Kerala.
When creating a business that sells clothes, accessories or patterns, the best practice is to consider IP protection from the very start of the process. Nowadays there has been a lot of fashion piracy where the small-scale retailers make imitations of well-known brands and sell them at cheap prices hence there is a need for awareness among the fashion designers in order to protect their creation and encourage uniqueness. Thus, it is of high importance that the creators of IP should always remain alert and should try to get the right protection for their creation.
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