Fashion Law

Author: Shweta Bilonikar

LLM (Financial Regulations)
K.P. Mehta School of Law, Mumbai

1. WHAT IS FASHION LAW?

Fashion is a part of life. Though it is often neglected or not given much importance, still everyone wants to be fashionable in their sense. Everybody wants to look good and is often conscious of it. The term fashion can have different meanings and importance for each individual. For some, it can only be a way to look presentable and for some, it is their source of income. French designer Coco Chanel defined fashion as, “fashion is not something that exists in dresses only. Fashion is in the sky, in the water, in the street; fashion has to do with ideas, the way we live, what is happening”. Fashion is not only limited to clothes and accessories but, it expresses the personality of an individual. It is a form of art.

The fashion industry is a wide industry in India and all over the world. Though there is no such legal protection and rules and regulations for this industry, it has still managed to flourish. Considering its vastness and willingness of people to wear fashion and spend millions on it, the people working in this industry have become quite aware of their rights. When there is a question of any rights, the law comes into play. 

Therefore, we can say that fashion law means a law or a set of rules and regulations, which helps to protect the rights of individuals working in the fashion industry. The definition of law given by Blackstone can explain this phenomenon more correctly. The definition is as follows. “A rule of action prescribed and dictated by the superior which some inferior is bound to obey and is applied indiscriminately to all kinds of action whether rational or irrational”.

2. SCOPE OF FASHION LAW

Fashion Law is also known as ‘Apparel Law”. It is an industry based on creativity and new ideas and designs. This business is mostly based on branding and earns mostly based on brand values. People are mostly attracted to bigger brands. The bigger the brand the more monetary benefits are gained. Thus, the main task in this industry is to protect the brand of the designer and companies. This creates a high risk of copyright, fake imitations of designs, etc. This is the biggest threat to the industry and a very important job of the lawyers working in this field.

Fashion law is not a separate law like other laws. The rights of the designers and company are protected by the Intellectual Property Laws that include Copyright laws, Patent laws, Trademark and Design Act. Fashion lawyers assist their clients in drafting various contracts, the procedure of licensing, issues related to copyright, trademark, design patents, etc. They can also work in fashion law firms, fashion houses and companies, as a private practising lawyer,  Fashion lawyers play a wide role from drafting and negotiating contracts, protecting intellectual property rights through litigation, consumer protection, licensing of innovative products for business and other corporate activities like mergers and acquisitions, maintaining legal formalities related to financial laws, etc. fashion law has a wide scope and is an emerging field for budding lawyers in litigation as well as non- litigation.

To pursue a career in this field, one can pursue a diploma in fashion law or study specialization in their post-graduation degree. Few universities provide these courses and internships. One can also take the required qualification from foreign countries like the USA, UK, France, etc. This field can give good opportunities in foreign countries also as the fashion industry is global.

3. COMPARISON OF INDIAN AND INTERNATIONAL PROVISIONS OF FASHION LAW

  • International Provisions of Fashion Law

The fashion industry is global. The rights of the designers and artists working in this field are protected by Intellectual Property Laws. In countries like the USA, UK, France, Paris, etc. people are very much aware of their intellectual property rights. Each country has its own set of rules as to what can be patented, or protected under the copyright and design laws. For example, in the USA, clothes, and fabrics are not considered eligible for copyright protection. This is because they consider clothes as daily necessities, hence, cannot be copyrighted. Whereas in other countries like the UK, it can be claimed for copyright infringement. 

In the USA, there are several intellectual property rights available for designers. Under the Trademarks Act, an individual can protect his brands and logos, the names of the brand, signs, and symbols. Designers can also apply for design patents. This right is protected by the Innovative Design Act of 2012. This act grants protection for a period of three years and would prohibit the claim that a fashion design is copied from protected design[1].

  • Fashion Law in India.

Fashion law in India is not much different from the fashion law provisions of other countries. In India, fashion law comes under the Intellectual Property Laws. This includes copyright, trademarks, design acts, trade designs, patents, etc. The Fashion Foundation of India, a newly constituted body consisting of the leading designers from India seeks the protection of their Intellectual Property Laws. There are various acts in India for every Intellectual property and fashion law is protected through these acts.

4. IMPORTANT AND RECENT CASE LAWS

1. Ritika Private limited V. Biba Apparels Private Limited. CS (OS) No. 182/2011.

Judgement date: 23rd March 2016[2].

 Facts: In this case Plaintiff is a famous boutique apparel designer brand in India. Plaintiff has filed the suit for seeking an injunction against the defendant from reproducing, printing, publishing, selling or offering, etc. of prints or garments which are a reproduction of the Plaintiff’s work.

The defendant is also a famous designer and manufacturer in India.

Arguments: Defendant argued that the designs of the plaintiff are not registered under the Design Act, 2000. Also, the plaintiff’s designs have been reproduced more than 50 times by an industrial process. Hence there is no copyright infringement.

Plaintiff claimed to be the first owner of the designs manufactured and also claimed trade secret violation by ex-employees.

Conclusion: The court stated that there was no copyright infringement on the part of the defendant as the designs of the plaintiff were not registered under the Designed Act, 2000. According to Sec 15 (2) of the Copyright Act, 1957, the plaintiff’s designs cease to exist as there was no registration and the design has been copied more than 50 times by an industrial process.

2. Emami V. Hindustan Unilever Limited (HUL)[3]

This is a very recent case law of which final judgement is still pending in the Bombay High Court.

Facts: HUL applied for a trademark for ‘Glow and Lovely’ which was initially called ‘Fair and Lovely’. This was done by HUL due to recent criticism for the name ‘Fair and Lovely’ saying that it promotes racial discrimination. An official announcement was made by HUL on 2nd July 2020. A trademark application was also made for the ‘Glow and Handsome’. HUL started the manufacturing of products under the new name by securing a license granted by the FDA.

Days after this announcement, Emami, which is another renowned brand of cosmetics, issued a press statement threatening legal action against HUL for infringement of Trademark Laws. Emami claimed violation of trademark for the name “Emami Glow and Handsome’ which has similarities in it. Interim relief was granted to HULL by the Bombay High Court stating that 7 days prior notice must be granted by the concerned party before filing any suit of law.

The above case is still pending in the court of law.

3. Crocs Inc. USA v. Bata India Ltd. And Ors[4].

MANU/DE/0309/2019

Judgement date; 24th January 2019.

Court: Delhi High Court.

In this case, Crocs sued Bata and others for infringement of its registered sandal designs and passing off of its trademarks in shape and configuration of its footwear. The Division Bench of the Delhi High Court did not interfere with the single judge’s order denying the interim injunction to Crocs as the design registration was prima facie liable to be cancelled based on prior publication and novelty. As the designs were published on Crocs’ website before filing the date of the design application, the court held that the validity of design registration was questioned based on the previous publication. Also, designs claimed were mere modifications of pre-existing designs, the court stated that the novelty of the designs was in question. The Delhi High Court also upheld the grant of legal costs to the defendants in the case. Furthermore, the Court ordered the single judge to hear the passing off cases along with registered design cases as they were based on the same cause of action.

4. Adidas America Inc. v. Skechers USA, Inc[5].

United States Court of Appeals for Ninth Circuit

890 F.3d 747 (2018)

Facts: Adidas America, Inc. (Plaintiff) and Sketcher USA, Inc. (Defendant) both were an athletic-shoe and apparels manufacturer. Adidas suede Sketcher for infringement regarding two styles of Skechers shoes, alleging that one Sketcher style, the “Onix” infringed on the trade dress of Adidas “Stan Smith” shoe, and another Sketcher shoe, the Cross Court’ infringed on Adidas “Three Stripe” trademark. 

The district court granted Adidas preliminary injunction against Sketchers as to both claims prohibiting sketcher from selling two types of shoes alleged by Adidas to infringe considering both the companies are competitors of each other.

Adidas further argued that Sketcher using low-quality material for production would harm the image of Adidas due to imitation of products and lead to post-sale confusion among customers and lead to irreparable harm.

However, the court did not agree with this contention stating that post-sale confusion will be caused after the sale of the product by watching it from afar. After watching closely, there are various marks of the sketcher brand on the product. Therefore, such an argument is not acceptable.

The court partly reversed the judgement of preliminary injunction on issues related to Crosscourt shoe style. Judge Cliffton concurred in part and dissenting in part.

5. Sales Associates v Forever 21 and Gucci and Sterling jewellers and Wal-Mart[6]:

Facts: There has been a string of worker proceedings towards some of the largest and famous shops and types this year, and none look to be headed for resolution each time soon. Forever 21 is being accused of permitting a hidden digital camera to be set up inside a worker bathroom, which becomes found only because footage of 1 former saleswoman ended up online. A former Gucci Saleswoman claims she became regularly subjected to sexual taunts and alarming encounters together with her store supervisor and not using a recourse. Sterling jewellers employed its first female CEO in the wake of years -lengthy arbitration turning up dozens of bills of harassment by way of male executives and managers. And Wal-Mart Stores Inc is again being accused of systematically paying and selling girls in its stores much less than guys. Retail, which employs a few four.6 million people inside the country, wherein most sales associates are women, may also be due for something of a reckoning. Lawsuits are frequently the primary signal to lawmakers and occasionally agencies that troubles are systemic and require broader movement. If any of the above complaints ended in a win for a plaintiff, retailers could at least be aware that making sure the safety and rights of their people ought to be very excessive on any listing of commercial enterprise priorities.

5. ACTS AND LAWS UNDER THE PURVIEW OF FASHION LAW

Following are the acts and laws which are included under the purview of fashion law

For infringement of Intellectual Property Rights

1. Copyright act, 1976

Under this act, the fashions like cosmetics, shoes, accessories, etc. can be protected from fake imitations, copying, etc.

2. Trade Mark act, 1999

Trademarks include logos, brand names, signs, and symbols related to brands and products. By registering under this act, one can protect trademarks and claim for damages in case of infringement. Trademark can also be done for a particular scent of the product or scents and perfumes. It is called an olfactory trademark or smell trademark.

3. Design act, 2000

This is the most important act in fashion law. Under this act, various designs of clothes, accessories, shoes, etc. can be registered. This includes particular shapes, colours, fabrics, and materials used for the manufacturing of fashion products.

4. Indian Patent Act, 2005.

The patent act protects innovative products created in the fashion industry. For example, cosmetics. 

5. Geographical Indications:

This law includes products which have a geographical history or are especially found in a particular area. Such products can be protected under this law.

Other Acts:

1. Consumer Protection Act

This act protects the rights of the consumers in case of infringement. 

2. Cyber laws

Today online shopping is done on a very large scale. Many online fraud cases also occur. Cyber laws protect from cybercrimes. It provides remedies and rules for investigations in such cases. 

5. CONCLUSION

From the research, it can be concluded that the fashion industry is a very vast and ever-growing industry. There is a great scope for lawyers in this field not only in India but also abroad. Though there is no special statute for fashion laws, it comes under the Intellectual Property Laws. All the laws, rules, and regulations are covered under copyright, trademark, design, and patent laws in India. Laws are similar in many countries barring few exceptions. 

In India, there are very few landmark judgements for the fashion industry. Not much protection is available in this aspect. However, there has been an increase of awareness regarding fashion laws in India and many cases are being fielded.

The fashion industry is an evolving industry. Stricter laws are necessary to govern this field as it can contribute to our economy more than it contributes now. It has a vast potential to grow. Copying and piracy must be controlled so that creativity is protected and more and more brands could flourish. 

 

References

  1. Nishithdesai.com, article on Fashion.
  2. Fashion Law and Its Scope with Reference to Important Case Laws by Jonah shiny, www.legalserviceindia.com.
  3. Fashion Laws with Comparison, Authors: Mr Pranav Kushal, Bahra University,

indianlegalsolution.com.

  1. News Article: India lacks landmark judgements on design piracy, only identical imitation attract copyright infringement.by Devika Dutt,

 firstpost.com.

[1] Concept of Fashion Law and its Background, By Pranav Kaushal, May 19, 2019.

[2]  global intellectual property convention: ip conference: gipc: intellectual property:

Http://www.iprconference.com.

[3] www.businessinsider.in

[4] top patent, trademark, copyright & e-commerce law firm banana ip counsels,

Http://www.bananaip.com/.

[5] ibid.

[6] Home International Budget Partnership,

 Https://www.internationalbudget.org/

 

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