The fashion industry is one of the most evolving & glamorous industries, generating billions in revenue each year. It includes within its ambit a multitude of designers of apparels, jewellery, footwear and other accessories like watches and bags. With the increasing demand for branded apparels & accessories, knockoffs and plagiarism has become an industry wide menace. From traditional Indian apparel designed by Sabyasachi, jewellery designed by TBZ or art inspired designs by Versace, everything is being re-produced and sold at stupendously lower & competitive prices. This leads to massive monetary losses & loss of reputation of the original owners as well as infringes their rights. This situation is further aggravated by lack of awareness and unclear laws.
Fashion and IPR go hand in glove. Everything within the world of fashion can be protected by IPR. While trademarks, copyrights, and designs are used widely, designers often find themselves in a dilemma while choosing between copyright and design law to protect their designs. This article focuses on resolving the ambiguity caused due to the overlapping of the 2 different laws.While a design can be protected under “artistic works” under Section 2(c) and 14(c) of the Copyright Act 1957, it can also be protected under Section 2(d) and 4 of the Designs Act 2000.
In lieu of these laws, let us understand the plight of the designers due the ambiguity created because of the overlapping laws. Miss ‘A’, a jewellery designer, has created exclusive pieces of jewellery inspired by peacocks using gold and ruby like the Cartier Panthere series and wishes to showcase them in the next fashion show. To avoid knockoffs of her design, Miss A decides to protect her designs. Now, the question arises as to under which law should Miss A seek protection from: Copyright Act or Designs Act? Once the jewellery design is fixed in a medium that is in form of a sketch, it will qualify to be protected under the Copyright Act under ‘artistic works’ (Section 2(c)), provided it passes the test of originality and creativity. Exclusivity is protected under the Act when the imagination is put into a material form and mere non-registration does not deprive the owner of its rights. The problem arises when Miss A materializes her sketch into an actual piece of jewellery.
Miss A’s designs can be protected under “artistic works” in the Copyright Act, provided they are not registered under Designs Act (Section 15(1)). However, the copyright ceases when the article to which the design is applied is reproduced more than 50times. (Section 15(2)). If Miss A intends to put her design to industrial use, it can be protected under Designs Act if registered and if not it will be protected as copyright unless it exceeds 50 products after which the copyright shall cease. This was reiterated by the court in Pranda Jewelry Pvt. Ltd. And 2 Ors vs Aarya 24K And 5 Ors.
Moreover, the fashion industry is constantly changing, and new fashion trends keep coming up at rapid rates. Sometimes the time taken for registration of the design exceeds the life of the trend, which puts designers in dilemma whether to register under the Designs Act or seek protection under the Copyright Act. Further, copyright protection subsists for the lifetime of the author plus 60 years while protection under design subsists for 10 years with further renewal for 5years.
In a general scenario, designers opt for copyright protection due to the longer term of protection and no registration but lose their copyright if their work is reproduced more than 50 times which is mainly attributed to the lack of awareness. Thus, the IPR dilemma can be resolved by spread of awareness and a clear precise law specially drafted for the Fashion industry.