Fashion, since its inception, has been a part of our social life, depicting the social status of the person. The fashion industry, generating billions of dollars each year, majorly focuses on creativity and intellect. As the industry prides itself on its tremendous growth, it is becoming a breeding ground for unauthorized and rampant copying of designs. Designers and fashion houses are becoming more and more aware of their IP rights to protect their design and business. However, with knockoffs and counterfeits taking the front seat, it is evident that the IP rights provide only limited legal backing to the fashion industry.

Copyright law is the most obvious kind of intellectual property law to protect creative works like books, paintings, sculptors, and song lyrics but not useful items like clothes and accessories. Copyright does not provide a monopoly over useful items like clothing. In other words, it protects the creative elements (like pictorial, graphical, and structural work) of the design of clothes, accessories, or footwear and not the functional elements. Also, copyright law protects fashion designs provided they are not registered under the designs act, but the protection expires if the design is reproduced more than 50 times.

Other than copyrights, trademark law protects the name and logo of the fashion brand which provides much-needed protection to businesses. However, the trademark only protects the name and not the designs of the apparel, footwear, or accessories. While trade dress protection under trademark law could provide the desired protection to underlying designs or shape size and overall look of the product, it is not a well-developed area of law in India. Further, to be protected by trade dress protection, the product must either have acquired distinctiveness or inherent distinctiveness as in the case of Christian Louboutin SAS Vs Mr. Pawan Kumar & Ors.[1] Since the criteria for protection is so high, only high end and well-known brands can be protected under this area of intellectual property rights.

Further, while considering the fashion industry, patent protection does not come immediately come to the mind. Nonetheless, patent protection can be granted to the technology used to reach a particular product. For instance, Novozymes, a Danish company has patented the technology used to attain stonewash jeans.[2]  But, patent protection can be very expensive and time-consuming thus not a feasible option for fashion houses since the industry is based on quick-changing trends and seasonal wear. Moreover, in India, design patent protection is unavailable.

These individual loopholes when taken together, aid in fashion design piracy and copying. Fast fashion retailers take advantage of these loopholes to generate billions of dollars each year and are rarely sued for the same. The case Ritika Apparels v BIBA is an example of how big well-established fashion houses like BIBA take advantage of these loopholes and escape liability. The smaller fashion houses and designers suffer due to the existing loopholes in IPR and lack of funds to receive the same. The most feasible solution would be to introduce a custom made fashion law to reduce the plight of fashion houses and designers.

[1] Christian Louboutin SAS v. Mr. Pawan Kumar & Ors, High Court of Delhi, CS (COMM) No. 714/2016

[2] WIPO Magazine, ‘IP and Business: intellectual property in fashion industry’ Issue 3/2005