www.whiteblacklegal.co.in ISSN: 2581-8503 VOLUME 2 : ISSUE 8 || April 2021 || Email: [email protected] Website: www.whiteblacklegal.co.in 1 www.whiteblacklegal.co.in ISSN: 2581-8503 DISCLAIMER No part of this publication may be reproduced or copied in any form by any means without prior written permission of Editor-in-chief of White Black Legal – The Law Journal. The Editorial Team of White Black Legal holds the copyright to all articles contributed to this publication. The views expressed in this publication are purely personal opinions of the authors and do not reflect the views of the Editorial Team of White Black Legal. Though all efforts are made to ensure the accuracy and correctness of the information published, White Black Legal shall not be responsible for any errors caused due to oversight or otherwise. 2 www.whiteblacklegal.co.in ISSN: 2581-8503 EDITORIAL TEAM EDITOR IN CHIEF Name - Mr. Varun Agrawal Consultant || SUMEG FINANCIAL SERVICES PVT.LTD. 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The erudite response of legal luminaries shall be solicited to enable readers to explore challenges that lie before law makers, lawyers and the society at large, in the event of the ever changing social, economic and technological scenario. With this thought, we hereby present to you WHITE BLACK LEGAL: THE LAW JOURNAL 4 www.whiteblacklegal.co.in ISSN: 2581-8503 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.