Can you imagine any woman not liking bags from Chanel or Gucci or shoes from Jimmy Choo or lehnga from Sabyasachi? We cannot imagine this. Today people are more brand conscious and have an affinity towards the fashion industry. They tend to showcase their fashion sense by buying products from different brands. But the only thing which stops people from doing so is the money constraint, that is the point where contrabands and copies of the original creations come to the rescue.
This is when one design gets famous, others start copying it shamelessly which results in a huge loss for the makers of the original products. Generally, copying is being done by shady companies but sometimes branded ones take refuge of the fault in the laws to copy and create products belonging to some other brand. One may find counterfeit products of famous brands plaguing the fashion industry, and quite frequently we come across newspaper reports of complaints dealing with and selling counterfeit products through various trade channels including the online portals.
In countries like France, the buyers are considered as criminals for buying counterfeit products whereas in countries like India there is no law for the same. In India, the owners of the original products have the right of going to the court of law for the appropriate jurisdiction preventing the counterfeiters from selling counterfeit products. The owner of the original product also has the right to claim for their losses.
How is IPR relevant to the Fashion Industry?
One may be curious to know how are all these relevant to the overall concept of intellectual property rights. The truth is that IPR and fashion are wedded to each other. The creations of the designs which are being accepted as fashions are the intellectual creations of an individual and the law of our land seeks to protect those creations by giving a right to those creators an exclusive right to use such creations and exploiting them to reap monetary benefits.
By following the same principle, the legal system seeks to promote creativity by encouraging more people to come up with innovations that may ultimately fuel the growth of an economy. If the said laws fail to protect creativity effectively, the same will result in a profound loss to the nation, since no one will come forward to innovate, and no new creations will be created. Thus one may notice the huge correlation between the fashion on one hand and IPR on the other. The plethora of laws namely the Trademark Act, Copyright Act, Designs Act and Geographical Indication of Goods Act seeks to protect the intellectual property rights related to creations of the fashion industry.
Recent Trends in the Fashion Industry – Contentious Issues
Creativity comprises a very important component of the fashion industry. While the abundance of creativity, help brands reach places, on the other hand, counterfeit fashion products pose threat to the fashion industry. The fashion industry, in particular, is plagued with such controversies of counterfeiting, or lifting of designs from popular works and putting them in some other product and thereby causing the violation of the rights of the original rightful owners.
If one follows the news regularly, one may notice at least two important development of intellectual property rights infringement in India. The first one is the case of Christian Louboutin, whereby the ones selling counterfeit products were held accountable and were made to pay exorbitant penalties so as to compensate Christian Louboutin’s loss due to the selling of counterfeit shoes resembling his original creations. One may have also come across the People Tree – Dior Controversy whereby Dior, the famous French fashion house was accused of lifting and reproducing the exact block prints of People Tree. The same act by Dior created huge furor due to blatant copying, without giving credit and the same would have gone undetected if the same dress was not chosen by actress Sonam Kapoor whose photo on the same dress was featured in the cover page of January edition of Elle India magazine.
The case of Ritika Apparels v BIBA is another case of significance, whereby one fashion brand lifted designs belonging to another fashion house and reproduced the same design in their product thereby causing loss to the original owner of the said design, Ms. Ritu Kumar. However in this case, the defendants, BIBA went scot-free using a lacunae of the copyright law (Section 15(2) of the Copyright Act which says if a creation which is eligible to be protected under the design law has not been registered with the design authorities and has been reproduced more than fifty number of times by industrial process, it will be considered that the copyright in the same product has been lost forever.
Ritika Apparel vs BIBA
The case of Ritika Apparel has been a unique one. One party copied other parties design, reproduced and sold it in its own brand name. The party whose designs were copied moved to the court alleging copyright infringement. But the defendants who took the same design took the protection under the Section 15(2) of the Copyright Act 1957 and proved that the act does not amount to infringement as the original rightful owners. Ritika Apparel lost the copyright owing to the production of more than fifty numbers of products by industrial production.
Since the designs made by the Ritika Apparel was not registered under the Design Act, they did not have the means of protecting the said design other than producing products having the same design less than fifty numbers of times. Thus BIBA escaped the liability due to loopholes present in the IPR.
Christian Louboutin vs Mr. Pawan Kumar & Ors
Christian Louboutin is a highly famous brand all over the world known for its highly stylized designer shoes. It dealt with the selling of counterfeited products at a lesser price causing a loss both to the brand name and the financial coffers of the company. Christian Louboutin’s Red Sole shoes are quite popular among the celebrities and the red colored high heeled shoes are quite a rage among the customers who intend to copy their favorite celebrity’s fashion sense and style.
However as mentioned before too, the original products are quite highly priced, thereby keeping the products out of the reach of most of the customers. Louboutin’s brand has established itself as a famous brand and a world leader by means of the usage of media and television. Louboutin’s shoes are known by their distinctive and characteristic red-colored soles which are common in all his creations and are marketed through specific channels and stores (Louboutin has 120 such stores all across the world and two such stores are there in India, one in Mumbai and other being in Delhi).
The plaintiff, Christian Louboutin moved to the court seeking a permanent injunction and compensation claims from the two stores (Kamal Footwear and Adara Steps) selling counterfeit products of Red Sole Shoes. The court in its judgment held the defendants liable to pay a total sum of Rs. 10.72 Lakhs, while they were injuncted permanently from selling the counterfeits again. The Judge in its judgment declared Christian Louboutin as a well-known mark, a much sought after tag for any brand owner. The infringement of Louboutin’s mark and successful prosecution of the defendant shoe store owners are the best examples of how a designer or a brand owner needs to protect his or her trademark.
Ways of Combating the problem
Taking into consideration the issues involved, one may be able to understand that even though there are legal protections available, most of the time it’s the designers who are at fault. It is no doubt true that the legal protection with respect to the fashion industry is a little feeble, nevertheless, the designers also need to be cautious about their creations and they need to strategize accordingly. Following are the few ways of combating the problem, which is as follows –
- Increasing the threshold limit of the commodities produced by industrial application from 50 to more number under the Copyright Act – a number commensurate with the consideration of the rising population and the fact that the machine production is in vogue nowadays.
- Amending the laws to make the purchaser liable too, apart from the seller of the counterfeits. The laws must be made in consonance with the international standards like that of France.
- Making a fixed percentage of profit of the infringer company to be paid as compensation or penalty, much like the EU GDPR penalty provisions.
- Enforcing IPR laws in a more stringent way perhaps by imposing criminal charges too on the counterfeiters apart from the compensation which is already in vogue today, so that lifting of designs are controlled largely if not totally prevented.
- Sensitizing the Designers about the need of protecting their IP in a correct way so that future troubles can be averted.
- Sensitizing and making the public aware of the counterfeit goods prevalent in the market and the bad sides of using them.
The fashion industry has significantly evolved in the recent years, powered by the liberalization further bolstered by effective implementation and application of laws. However, it has been noticed that the designers most of the time fail to protect their IP using the legal route. We have noticed such a trend in Ritika Apparels case where due to the lack of the proper protection the defendants went scot-free.
At the same time, Christian Louboutin won the permanent injunction against the counterfeiters and got compensated for the loss. The difference is because of the proper IP strategies and prior registration of the mark which gave the brand an added advantage in the legal proceedings. While it is true that it is almost impossible to totally eradicate counterfeiting and preventing others from copying if the creation is protected in a right way it reduces the chances of the loss by reducing the damage. 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. Also, the government needs to take into consideration the recent trend of the counterfeiting and pass a sui generis law specifically applicable to the fashion industry, in order to protect the IP of the country and overall to strengthen the country’s economy.