April 2021 || Email: Editor@Whiteblacklegal.Co.In Website

Home , Fashion in India, Fashion law, Fashion merchandising

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VOLUME 2 : ISSUE 8 || April 2021 ||

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THE DIRE NEED OF DEFINITE LAWS IN FASHION INDUSTRY: INTELLECTUAL PROPERTY RIGHT

By: Arundhati Singh

ABSTRACT

We are all aware that law is complex in nature, meaning that it evolves in response to social trends. What, after all, is more dynamic than fashion? As a result, a new area of law known as fashion law or apparel law is emerging, which deals with issues relating to the existence of a garment, from its production to its brand security. It's all about the fashion. The word has gotten under everyone's skin to the point that it's no longer just a noun. Oh, no! I'm a traditionalist. She has a trendy look. Maintain a consistent look in your work. This is a distinct style. Despite the fact that it is only one word, it can be used in a number of ways. That raises the question of what Fashion is, and how it developed into an industry that is now a subject of debate in terms of the need for definite rules. Fashion can be narrowly described as the most common style at any given time. Fashion Theory's editorial policy describes fashion as a cultural creation of embodied identity. The concept is not limited to clothing and accessories in any way. Anything may be the case. So, when it comes to fashion, why do people think about clothes and accessories first? In the 1990s, most people first heard this term as FTV on their televisions. As children, everyone was enthralled by the prospect of people coming down the ramp. Some people still associate fashion with fashion shows and trendy clothing after all these years.

INTRODUCTION

Intellectual Property Rights (IPR) are a person's rights to their intellectual creations, which include things like painting, literature, and inventions. Any new concept is the monopoly of the person who owns it, and the person who owns it has the right to benefit from it. Copyright exists for writing and sculpture, a patent exists for inventions, and a trademark exists for brand names. IPR also applies to the fashion industry. The fashion industry entails the development, manufacture, and distribution of new and exclusive clothing, accessories, and jewelry. These designs are the product of someone's intellectual labour, and as such, they should be covered under the IPR. However, in the United Kingdom, designers have limited options for securing copyright protection for their designs under the Copyright, Designs and Patents Act, 1988, because the sub-categories offered in S.4 that describes "artistic works"

5 www.whiteblacklegal.co.in ISSN: 2581-8503 unfortunately do not include "clothing design" or "fashion."1 Since copyright law is exempted from monopolizing basic elements such as fabrics, and apparel labels in the United States are largely covered by their trademark law, there is no particular law that deals with designs on clothes in the United States.2 In India, however, the situation is very different. The Designs Act, which varies from the Copyright Act, 1957, was passed by the Indian legislature in the year 2000 to protect designs used on garments in the fashion industry.

FASHION INDUSTRY

Innovation is a critical component of the apparel industry. Counterfeit fashion pieces, on the other hand, pose a threat to the fashion industry, despite the fact that creativity helps brands hit locations. Many controversies afflict the fashion industry, such as counterfeiting or removing designs from popular works and putting them in another product, infringing on the rights of the original rightful owners.

PROTECTION FOR FASHION IN INDIA

Since it has been proven that anyone can copy the design of a dress and benefit from it, renowned designers in the country often aim to protect their creations, be it dresses or accessories, from plagiarism. Counterfeits of well-known brands, whether domestic or international, and fake designer goods in the fashion industry often flood the market, and consumers tend to buy counterfeits because they look and sound like high-end branded products but cost a fraction of the price.

The concept of ‘artistic work' in S.2(c) of the Copyright Act of 1957 includes ‘any other work of artistic craftsmanship,' which may mean that designs would also come into this category because they are also works of artistic craftsmanship. However, there is a different Act that exists primarily to safeguard designs used in the fashion industry. The Designs Act of 2000 defines the term "template" as "only the features of form, configuration, pattern, ornament, or composition of lines or colors added to any article and which, when completed, "appeal to and are judged solely by the eye" [S.2 (d)]. As a result, it only considers the aesthetics of a design, excluding any mode of construction or anything that involves a mechanical device. As a consequence, any design may be brought under The Designs Act and registered

1 Copyright, Designs and Patents Act, 1988, C.48. S.4 (Eng). 2 John Zarocostas, The role of IP rights in the fashion business: a US perspective, WIPO MAGAZINE (Aug. 2018) https://www.wipo.int/wipo_magazine/en/2018/04/article_0006.html, last visited Oct.2,2020.

6 www.whiteblacklegal.co.in ISSN: 2581-8503 according to the Act's provisions, regardless of the fabric or metal on which it is applied. Anyone who registers a design under this Act and pays the required fee would have a ten- year monopoly on the design.3

The design act, as the name implies, is concerned with the garment's design or shape, as well as its fabric and distinctive tailoring style. When a designer named Rohit Bal received copyrights over his entire clothing range, it was the first and most well-known instance of the copyrights problem. Today, every designer owns the copyright to his or her work.

Every designer, whether famous or obscure, global or local, would be concerned about maintaining his exclusivity.

DESIGN AND COPYRIGHT CASES

There may be some doubt as to whether a fashion design, whether a drawing of a design or one applied to a fabric or jewelry, is covered by The Copyright Act or The Designs Act. Furthermore, fashion designers may want to put their design under the Copyright Act because it grants a 60-year monopoly on an artistic product, while the Designs Act only grants copyright for 10 years. In Ritika Private Limited vs. Biba Apparels Private Limited, the Delhi High Court put an end to the dispute. 4

In this landmark case in the fashion industry, the brand RITU KUMAR tried to shield its designs under the brand name by copyright, charging that some of their former employees had gone to work for the well-known brand BIBA. The defendant argued that, under Section 15 (2) of The Copyright Act, 1957, if a design is registered under The Designs Act, it is not subject to copyright, and if a design is not registered under The Designs Act but is ‘capable of being registered,' ownership of the copyright in the design is passed to an article by an industrial process for more than 50 times. The suit was dismissed on the grounds that the designs fell under the concerned Section of the Copyright Act because the term "capable of being registered" is included in the Act.5

3 The Designs Act, No.16 of 2000, Acts of Parliament, 2000 (India) 4 Ritika Private Limited v. Biba Apparels Private Limited (2011) CS (OS) No.182/2011 (India). 5 Ritika Private Limited vs Biba Apparels Private Limited on 23 March, 2016, INDIAN KANOON, https://indiankanoon.org/doc/20292476/ last visited on Oct.3, 2020

7 www.whiteblacklegal.co.in ISSN: 2581-8503 OTHER FASHION LAW

Fashion business must adhere to the laws of the country, and no mode of trade or business can exist outside of the legal framework. The fashion industry includes not only design but also production, retail, marketing, and other processes. As a result, relevant laws regulate each of the industries, such as the Factories Act, 1948 in India, which governs the manufacturing process; corporate laws govern marketing and other company-related issues of a fashion company; and banking law governs loans and other finances. E-commerce has encouraged sales in the fashion industry since the advent of the internet, but laws relating to information technology and e-commerce are also important in the field of fashion. When it comes to the import and export of fashion goods, foreign trade and business rules, as well as tax laws and other legal provisions, come into play to ensure that the fashion industry operates smoothly and equally.

Modeling, which is an unorganized industry, is another significant part of the fashion industry. As a result, there is no clear law securing the interests of models. Models, on the other hand, have the same rights as every other worker in the world, including the right to be free of sexual abuse at work. In the United Kingdom, the British Fashion Council conducts educational seminars for models in order to prevent eating disorders.

MERCHANDISING OF FASHION

It's all about the clothes. Is fashion all about the look? Is it just about the appearance? No, no, and no. It's not about the product or the rules that control design counterfeiting. The fashion industry is more than just the beauty of a piece of clothing's appearance. It is, without a doubt, the most difficult aspect of the fashion industry. When it comes to the need for laws in the fashion industry, the only thing that comes to mind is ‘THE DESIGN.' So, what does the fashion industry entail? Let's take a look at how the design process works. A fashion designer is the one who comes up with the idea. The concept is incorporated into the procedure. Manufacturing is the term for this procedure. The goods are then put on the market after they have been manufactured. It is just not possible to make clothes and sell them in stores. This involves a well-organized procedure. This is what fashion merchandising is all about. The majority of people mix up fashion merchandising and fashion design. The concept is what a

8 www.whiteblacklegal.co.in ISSN: 2581-8503 designer does, and the way they market it is merchandising. This is the most straightforward way of putting it. Why do we need laws in the merchandising industry, one may ask? This is the fashion industry's most overlooked market. We often hear phrases like "factory sale, thus 20% off," "first copy, thus 30% off," and so on. The merchandising aspect is reflected here.

The strategic study, marketing, management, and distribution of fashion goods to increase profits is referred to as fashion merchandising. A fashion merchandiser is an expert on the materials that are used to make a piece of clothing. It aids in the realization of a designer's vision by having a thorough understanding of the fabrics' historical and socio-cultural context. A fashion merchandiser takes a designer's piece and investigates the best way to manufacture it, taking into account factors such as price and target market at the same time. Buying is a part of fashion merchandising where a merchandiser buys fashion items to display in a store. If a fashion merchandiser works for a retailer, selling the designer's products to stores interested in purchasing large quantities is a top priority. The fashion merchandiser must possess not only a creative mind and strong visual merchandising abilities, but also strong manufacturing skills. Fashion merchandising promotes a designer's pieces by using fashion shows in which creations and visual effects are elevated to attract the attention of potential buyers. Furthermore, fashion merchandisers seek out the target market for a designer's apparel, such as girls' clothing shops, department stores, or discount retailers.

CATEGORISATION IN FASHION MERCHANDISING

1. Product merchandising: Activities used to promote and sell a product. Items for product merchandising may be in-store or online.

2. Visual Merchandising: All of the display tools that are used to emphasize the appearance and ad

3. Retail Merchandising: Promotional and marketing practices that help a physical retail store sell goods to consumers in some way.

4. Digital Merchandising: All advertising campaigns that are used to promote a product online.

5. Omnichannel Merchandising: Creating a consistent consumer experience through all potential customer touchpoints.Vantages of the goods and services that are being offered.

9 www.whiteblacklegal.co.in ISSN: 2581-8503 The biggest challenge is that the non-applicability of property Rights to the total of promoting and commerce. Whereas there are a unit advertising laws and varied cyber laws once it involves e-commerce, there aren't any well-defined laws that may govern the commerce method. once it involves style there are a unit 2 parties however once it involves commerce there's a further party if the UN agency one that one who} is activity isn't the one who is mercantilism. The complexness within the method makes it difficult for control the business.

Quite often we tend to see folks merchandising garments on the footpaths. Would these return beneath counterfeiting or mercantilism? This comes beneath the scope of merchandising. Merchandising garments in an exceedingly specific place with the rating board involves strategy and designing. As an example, let’s mention the notable Sarojini market in capital of India. What goes on there's not precisely counterfeiting however that's fashion mercantilism. They need methods for merchandising merchandise at less expensive worth victimization their techniques. Will we tend to book them beneath laws that govern IPR? We tend to actually cannot. That’s their promoting strategy. They sell shoes that appear as if a cougar with the name puma. They need not profaned the copyrights act however they need caused a definite quantity of loss to the cougar makers by cashing their fame. All this can be fashion mercantilism. The $64000 question is, ought to we tend to fully curtail such strategies?

Let’s inspect it this manner. I might need to shop for shoes that appear as if Adidas however I cannot afford to shop for them. I’m going to the market trying to find similar styles however of lesser worth. I realize a store that matches my demand. Individuals sell a similar style as others for 2 reasons. One, he doesn't have cash to rent designers therefore he employs tailors WHO will do the work a lesser worth. Two, the look doesn't have any recognition of its owner therefore the owner needs to usher in one thing in trend. Now, I got what I needed and he got what he needed. Will we have a tendency to decision this a win-win scenario or ought to we have a tendency to decision it stealing the originality of somebody else? Would individuals get expensive garments once they will realize a similar at a way lesser value? The solution may well be an affirmative or a no. I’d still need to travel and get a similar lehenga from Sabyasachi though' a similar would be accessible in different outlets. Some would possibly simply get a similar one sewn from a neighborhood market. All this boils right down to the problem of right or wrong. This is often subject to interpretations and private opinions. However at the tip of the day, it's beyond question stealing someone’s originality. Hence, no quantity of guilty pleasure is referred to as out as AN excuse to imitating or lifting someone’s style. Strict rules area unit necessary to curtail such marketing.

10 www.whiteblacklegal.co.in ISSN: 2581-8503 Now that we've got mentioned the facet of style and commerce, it's vital to shed some lightweight on what merchandise ought to be sold. Once the designer and therefore the merchandiser square measure 2 completely different parties, most care has got to be taken whereas product square measure given to the designers. Whereas IPR protects the sellers there square measure restricted laws that get to safeguard the sellers. Strict laws ought to be created to safeguard the rights of the sellers or intermediate parties.

Online shopping. We come, we see, we buy. Seldom have we had a tendency to|can we will we} check the legitimacy of what we purchase. It’s tough to visualize the originality of online merchandise. Hence, strict laws that square measure on the far side simply ‘return and refund policy’ ought to be brought in.

Social Media could be a new e-commerce platform. With celebrities and tik-tokers promoting covering websites, it's straightforward to commit fraud. One cannot blame those World Health Organization promote. The precisely is that the issue. Strict laws ought to be brought therein will regulate such advertising of merchandise and websites.

Above all, the foremost necessary issue is profit maximization. Profits ought to be maximized to those World Health Organization be it. The most effective example to say during this regard is weavers. It’s typically seen however the middlemen provide those tens or tons of and sell them for thousands and lakhs if the material is hand-crafted or a particular reasonably silk.

All same and done, wherever there's a market, there's perpetually scope for fraud and exploitation. For this to be decreased, definite laws should be created within the merchandise trade.

CONCLUSION

The textiles sector is one in every of the biggest and therefore the oldest sectors Asian country. Asian country has over the years witnessed unprecedented growth within the garment industry. Whereas well-endowed raw materials area unit one reason, practiced

11 www.whiteblacklegal.co.in ISSN: 2581-8503 personnel UN agency will beautifully carve what's raw into what will be worn is one more reason. All due to globalization consumerism are on the increase. as a result of this reason and coupling that with the increase in income, the retail sector in Asian country has witnessed ascent over the past few decades with the entry of international players like Zara, Nautica, et al into the Indian market. With people’s fascination with and idolizing of film stars, no matter they wear or endorse becomes thus fashionable that individuals dream of owning them. Hence, it will with ease be inferred that the trade movie industry|screenland|industry} is and has been a organism of promoting the style industry. in an exceedingly country like ours with such an enormous textile trade, the necessity for laws is that the vacant minimum. The paper with regards to the necessity for laws is split into 2 components for a reason. The explanation is that, although marketing and style area unit each 2 vital factors within the garment industry, there's no unified law that protects them each.

The division is meant to replicate the importance of definite law within the fashion commercialism business. With some countries having unofficial fashion ministers, it's time Republic of India comes up with a separate unified law that governs the style business if not having a whole ministry.