Trendy but Sustainable!

Introduction:

We all love fashion. The clothes, the shoes, the bags, every piece takes our utmost attention and time. Our fashion becomes the way people identify us. But this identification industry is one of the most polluting industries in the world. The constant production of new styles, carbon emissions, toxic dyes along with other harmful materials put the environment at risk. Neither can we abolish this huge industry completely nor can we let it create the waste it does. This is where sustainability in fashion industry comes into picture.

Sustainability in Fashion:

Sustainability in the fashion industry is assessed in relation to the design, production and disposal of clothing and accessories in a way that it minimizes their impact on the environment and promotes social and ethical values. Intellectual Property Rights have been playing a very important role in this spectrum. Along with protecting fashion designs, logos, and innovations, IPR also aids in protecting the future of fashion industry. This can be done by way of use of certification marks which show sustainability of products. Fashion designers and manufacturers can use these marks to demonstrate their commitment to sustainability and differentiate themselves from less sustainable competitors. This can also help them in generating larger consumer base and earning profits. IPR can also help in protecting the rights of industry experts who create sustainable and ethically produced products. Some Western countries have introduced sustainable fashion regulations and standards to ensure that companies are responsible for their environmental and social impacts, while others have introduced tax incentives for companies that adopt sustainable practices, such as monitoring their carbon footprint or using durable materials. In India, Geographical Indicators protect traditional crafts and handicrafts known for their sustainability and use of natural materials.

As not every company has enough capital to easily go green, the role of Government in providing incentives is crucial.

Conclusion:

Sustainable fashion is the next trend. People follow this trend just as seriously as they follow any other trend. Every consumer, in light of climate change and environmental protection, is going green with their styles, making
Sustainable clothing is a Bold Fashion Statement.

By-
Savani Budhkar
4th Year, BALLB,
ILS Law College, Pune

Social Media Influencers and Modern Advertisements in India

Social media influencers are the new age internet ‘celebrities’ who use social media platforms to rise to fame. These influencers create reels, blogs, videos, pictures, and more to gain followers and build connections with their audiences. Brands bank on the popularity of influencers to promote their products and services through influencer marketing.

Unlike, traditional advertisements, influencer marketing doesn’t appear at the first glance to be an advertisement. They might be mistaken by consumers as being the influencer’s personal recommendation instead of a commercial partnership. This also promotes false advertisement as influencers are seen endorsing products that they have never used and making false claims regarding them.

Regulation On Social Media Advertisements by

Influencers:

ASCI Guidelines

In India, the Advertising Standards Council of India (ASCI) is the self-regulatory body that sets guidelines for advertising across various mediums, including social media. The Guidelines for Influencer Advertising in Digital Media were released on June 14, 2021. These guidelines apply to all advertisers, including influencers, and aim to ensure that all advertising is truthful, honest, and not misleading.

Some of the key rules and guidelines for social media advertising by influencers in India are:

Disclosure of sponsored content: Influencers must clearly disclose any sponsored or paid content by using appropriate hashtags such as #ad, #sponsored, or #paidpartnership. The disclosure should be made upfront and prominently, and should not be buried within the post.
Truthful and honest advertising: Influencers must ensure that their advertising content is truthful and not misleading. They must not make false or exaggerated claims about a product or service or misrepresent its benefits or effectiveness.
Adherence to ASCI code: Influencers must adhere to the ASCI code for advertising, which includes guidelines on various aspects of advertising such as claims, comparisons, endorsements, and more.
Age-restricted products: Influencers must not promote age-restricted products such as alcohol or tobacco to minors.
Responsibility for content: Influencers are responsible for the content they post, and must ensure that it complies with all applicable laws and regulations, as well as community guidelines of the social media platform.

In addition to these guidelines, influencers must also comply with any specific guidelines or rules set by the social media platform they are using. For example, Instagram requires influencers to clearly disclose any sponsored content using its branded content tools. It is important for influencers to be aware of these rules and guidelines and ensure that their social media advertising practices are compliant with them. Failure to do so can result in legal action, fines, and damage to their reputation.

Consumer Protection Act, 2019

The Consumer Protection Act, of 2019 addresses the evolving market scenario in the country. It provides consumers with enhanced protection and transparency in influencer marketing. The Act mandates that influencers disclose any material connections or commercial relations that they have with brands that they are promoting. This includes any payments, gifts, or other incentives they have received in exchange for promotion.

The act also prohibits misleading advertisements, which means that influencers must ensure that the claims that they make about the products or services they are promoting are truthful and not exaggerated. If an influencer makes false or misleading claims, they can be held liable for any harm caused to consumers.

Misleading Advertisements are defined in Section 2 (28) of the Act as an advertisement which

falsely describes such product or service; or
- gives a false guarantee to, or is likely to mislead the consumers as to the nature, substance, quantity or quality of such product or service; or
- conveys an express or implied representation which, if made by the manufacturer or seller or service provider thereof, would constitute an unfair trade practice; or
- deliberately conceals important information;

The act also provides consumers with the right to file complaints against any misleading or fraudulent advertisements. In case of any violation, the influencers can face penalties such as fines and even imprisonment. The punishment for the misleading advertisement includes imprisonment up to a period of 2 years with a fine that may extend up to ten lakh rupees. This Punishment is stated in section 89 of the Act. Section 21 of the act gives Central Authority the power to remove any false advertisement.

What the Judiciary Says:

Marico Limited v Abhijit Bhansali [1]

The Bombay High Court, in its decision, had also identified “social media influencers” as a nascent category of individuals who have acquired a considerable follower base on social media and a certain degree of credibility in their space. The decision also noted the need to impose certain responsibilities on such influencers keeping in mind the power they wield over their audience and the trust placed in them by the public.

Aditya Kumar Jha v. UOI [2]the High Court of Allahabad held that the role of the ASCI is to ensure that advertisements are truthful and honest. Further, the test to determine if an advertisement is truthful and honest is the impact it has on a consumer and whether it is likely to mislead them.

Conclusion

According to some reports, half of the Indian population uses social media and this number is expected to keep growing. With the advent of digital media, influencer advertisement has become the new norm of advertisement. The Indian legislators have also taken notice of this and have accordingly come up with guidelines and statutes to stop misleading or false advertisements by influencers. The ASCI guidelines are being strictly applied to influencer and their posts with mechanisms for detecting violations set up in place.

BY-

SHAKSHI SWARNKAR

2ND YEAR LLB

ILS LAW COLLEGE, PUNE

[1] 2020 SCC OnLine Bom 265

[2] 2017 SCC OnLine All 3922

Saree in Law

Saree is well-known Indian attire worn by women not only in India but around the world. It has captivated audiences since time immemorial due to its sensuality and versatility. A saree can be draped in numerous ways that highlight its versatility, culture, tradition, community, occasion, and beauty. Saree is an imperative part of the Indian tradition and culture. Whether it’s Madisari, a saree-draping style that was traditionally worn by women after their marriage in the Iyengar and Iyer culture of Tamil Nadu, or the Atpoure Shari, the saree draping style of West Bengal or Kappulu a saree draping style of the older women in Andhra Pradesh or the Nauvari worn like a dhoti in Maharashtra, the draping or tying style of an unstitched garment or 3.5 to 9-yard saree, varies by region, community, functionality, and, on occasion. In a world full of ever-changing fashion trends and fast fashion, Indian sarees and the traditional draping style remain constant. India has a treasure trove of saree styles and different ways of draping them that have even inspired the international fashion world.

Despite this India lacks a law regime to protect the saree draping styles. The Indian Trademark Act 1999 can protect the brands selling sarees while the prints and designs can be protected under the Copyright Act 1957 under original artistic work or the Designs Act 2000 for the designs aesthetically appealing. However, one may think to protect saree draping under ‘any other work of artistic craftsmanship’ under the Copyright Act 1957[1], but issues related to calculating the time, originality, and who to attribute the authorship arise. While the most obvious branch of IP the mind associates to saree is Geographical Indications, however, registered GIs under the Geographical Indication Act 199 like Bhagalpuri silks, Kanchipuram silks, Mysore, and Muga silks, which are world-famous as fabrics associated primarily with sarees. Further, saree draping is fundamentally considered a process or an activity, which may lead one to the domain of patent protection but due to the activity being in the public domain since time immemorial protection under the Indian Patent Act 1970 is not possible for saree draping.

It can thus be concluded the present IP regime in India including trademarks, copyrights, patents, designs, and even GIs mainly protect the brand name and logo, the weave and fabric, the manufacturing process, the unique designs, or a combination of all of these, and the community for protecting/maintaining the standards and nurturing the culture and tradition as GIs. But neither of the above talk or provide protection to saree draping.

How can India protect Saree Draping?

It is certain that the current IP regime in India cannot provide the much-needed protection to the myriad of saree draping styles prevalent in a culturally rich country like India. In such a scenario, India can develop the lesser-known branch of Intellectual Property Rights known as Traditional Knowledge which further incorporates Traditional Cultural Expressions. Saree draping styles perfectly fit under the WIPO definition for Traditional Cultural Expressions[2], as tangible forms of expression – folk costumes. Saree draping styles can be envisaged as folk / traditional costumes worn by when and women of communities. Thus, a well-codified law to protect such traditional knowledge or traditional cultural expressions which are passed from generation to generation could help to protect saree draping styles in India. However, locating the owner of the traditional cultural expressions and the fact that sarees are commonly worn in Nepal and Bangladesh, proprietor and territory issues may be common.

However, India can adopt the economic right ‘Domaine Public Payant’ to protect traditional cultural expressions such as saree draping styles. According to this right, when the work enters the public domain after the normal period of protection expires, it cannot be used freely as in the case of normal free public domain. On contrary, it requires a royalty to be paid for the commercial use of the work.[3] Thus, any non-Indian who commercially exploits Indian saree draping styles would be required to pay a royalty or prescribed fee to the collecting society or equivalent. Till date, only 5-6 countries have adopted and incorporated this right and could be a feasible option for India to adopt to protect saree draping styles as Traditional Knowledge and Traditional Cultural Expression. Saree is a prominent part of the Indian culture and a source of inspiration to fashion trends across the world. Protecting the different traditional ways of draping a saree is in fact an essential way to protect the diverse culture and traditions in India.

[1] Section 2 (c)(iii)

[2] https://www.wipo.int/tk/en/folklore/

[3] https://unesdoc.unesco.org/ark:/48223/pf0000143960

Conjunction of Fashion Law & Artificial Intelligence

The use of Artificial Intelligence in the Fashion Industry has gained momentum over the past few years. Though it provides a myriad of opportunities and innovative services like ability to try-on clothes and make-up and give styling solution digitally, it also presents potential copyright challenges. Brands like Zara seek to implement interactive fitting rooms for a personalized styling solution for their customers, while other brands use technology and data analysis to understand and respond to customer’s preferences. With constantly changing trends, AI is being used to analyse existing consumer data, sale pattern, profitable element of the apparels to predict the upcoming trends. It is being used to create and generate fabric designs, silhouettes, and sketches. However, in the light of the current IP legislation and growth of AI technology, who owns the copyright in the AI-created designs is a point of debate.

When designs are created using an AI, but the inputs and instructions are given by human, ownership of the designs can be attributed to the human. However, with developments in technology, AI- machines are now capable of creating designs without human input or interference. In such a case, where a design is created without human interference, the ownership can be attributed to the person who has the copyright in the AI software used to generate the designs or to the AI itself. Currently the Indian Copyright law does not give exhaustive rights to the AI-generated designs and gives no clear answer to who owns the designs created using AI.

Further, Section 13 of the Copyright Act clearly defines the copyright subsists only in original work. Thus, for a copyright to subsists in an AI-generated work, the designs must be original and satisfy all the test of originality but whether an AI creates original designs is still questionable. In India, the law has time and again focused on the requirement of human inputs and intellect for copyright protection. AI created designs could be protected under the copyright law as compilations. But to claim copyright in compilations, the designs must be produced with exercise of skill and labour and not be a mere product of labour and capital.[1] Copyright law only protects fruits of intellectual labour, skill and judgement and not work created using a machine. Given that the law only protects works with some human contribution and skills, question arises what happens to designs created using AI when human input is limited to pushing a button or speaking?

No doubt AI in the fashion industry is a lucrative and attractive venture but it poses several legal challenges. Investors and designers are unable to gauge the value of the designs created by the AI due to the ambiguity of law, whether the designs will be protected or who will own the designs. Particular attention must be given to the ownership of the designs and that companies and designers using AI, should explicitly address the question of ownership beforehand, to protect them against the legal challenges.

[1] Eastern Book Company & Ors v. D.B.Modak & Anr. ((2008) 1 SCC1)

Fashion Modelling and Human Rights

No other industry requires its employees to pose in extreme temperature conditions and locations wearing uncomfortable apparels for that one perfect shot. Strenuous working hours, unnecessary strict diet, drug abuse, sexual abuse are only few issues faced by the models. The flurry of ambiguous regulations and legislations only add to the plight of the models. In such exacerbating circumstances and lack of laws and guidelines, is the modelling industry as glamorous and appealing inside as it is on the outside?

A model is perceived to look flawless with the high-end designer dresses, on point makeup but no one really peeps deep into issues and problems these models deal with to achieve their dreams. The fashion modelling industry has become a centre for human rights abuse and allegations, where fashion models are deprived of their basic human rights and dignity. Most fashion models are considered as mannequins or clotheshorse and modelling is often considered as an easy task- just an extension of dressing up, walking through the ramp, and posing for pictures. People often turn a blind eye to the toil and turmoil faced by these models.

Models work under constant pressure, in some sort of institutionalized dictatorship while dealing with harassment, hunger, depression and low standards of living. Often, models eat tissue and cotton balls to do away with their hunger, face discrimination based on colour and race, harassed sexually, drug and alcohol abuse, invasive backstage and non-consented photographs used for pornography, human trafficking and many more. The issues are also extended to the standard of leaving – the apartments in which these models stay are no less than prison where models are drugged without consent and raped on camera.

When models become vocal about their needs, they face ignorance and avoidance or even lose their job. These issues and plight of models evoke basic human rights like right to physical and psychological integrity, right to health, right against discrimination, right against human exploitation, right to life and liberty, no torture and inhuman treatment. The ratification of these rights are important for the personality development of models but are usually ignored by the modelling agencies. Even when the national legislations are applied to models, the main point of concern is only the weight and age of models.

Countries like France and Israel restrict working of models below the BMI of 18 and 18.5 respectively while Italy, Spain, and Denmark limits access of work of underage models and BMI below 18.5. The justification for imposing limitations on BMI is that the fashion industry must display healthy bodies. But its pertinent to note that a model may be healthy irrespective of the fact that her BMI is lower than the imposed restriction or she has a plus size body. Thus, the mental and physical wellbeing the model must be considered, by implementing routine medical check-up of the models, rather than considering the size or age or BMI.

Other national legislations like labour laws do provide dispositions to protect models but cannot track or prove all types of abuses like sexual or moral abuse. Thus along with these laws and guidelines, creation of non-profit organization like Model Alliance is necessary to give voice to models and protect models against opaque accounting practices of modelling agencies, protect image and privacy of models, protect against abuse and degrading living conditions.

Colour Mark in the Fashion Industry

Colour trends in the fashion industry are decided based on the season, latest trends, or what the consumers would choose to express him or herself. A colour trend cycle starts with the designer introducing it which is then accepted in the marketplace. The colour trends until the marketplace are saturated with it and then it moves on to the next colour cycle. Many brands try to monopolize and want exclusive rights over a particular colour which is associated with their brand. The protectability of colour in the fashion industry is a point of debate for many years, particularly in the wake of Louboutin’s Red Sole Case.

In the fashion industry, consumers buy a product based on the latest trends and styles and how aesthetically the colour appeals to the consumer. A monopoly of a particular colour could pose a genuine threat of colour depletion in the fashion industry and put other designers at a disadvantage. Further for a colour to be identified with a particular brand it must be used consistently through all seasons. But colours in the fashion industry are used according to the season such as earth tones for autumn, floral, and pastels for the spring, and white or lighter shades for the summer. If the designer uses colour according to the season, no monopoly can be granted to the colours due to a lack of acquired distinctiveness. Only limited colours can withstand all the changing trends and seasons in the fashion industry. Monopoly over these colours would put other designers at a competitive disadvantage and will deter other designers from entering the market as they will not be able to use the colours appealing to the consumers. Thus, considering that there are limited colours, a monopoly over a single colour is the main point of debate as it would result in a loss of creativity.

Conversely, many designers argue that monopoly over a particular colour only stops other designers from using the same colour in the same manner. For instance, in Louboutin’s case, his monopoly over the red colour sole only prevents other designers from using a deceptively similar red colour for the sole of the shoes. Competitors can use a different colour in a similar or different manner. But, for a colour mark to obtain trademark protection, it must prove that it has acquired a secondary meaning through long use. Owing to the short life of trends and style, it becomes difficult for colour to be protected under the pretext of acquired distinctiveness. Further, in earlier days fewer colours were available and therefore the available colours remained long in the market, forming a deep symbolic association with a particular product. But with a myriad of colours available now, association with colours have become weak.

Using colour mark adds distinctiveness to designs and limit other designers from copying or selling their goods on other’s goodwill. While competitors may argue that colour should not be granted protection due to limited colours appealing in all seasons, in some cases the colour depletion theory does not apply due to a myriad of colours coming up. Further, the colour depletion theory is less likely an argument because of the ever-changing colour trends. A colour is protected only when it is consistently used by the designer in all seasons and is identified with the brand satisfying the condition of acquired secondary meaning and association with the designer.

India’s take on the Grey Market in the Fashion Industry

With increase in demand for luxury brands in India, the fashion market is becoming a paradise for knockoffs, counterfeits, and the grey market goods. Grey market is a parallel market where authentic brands are sold at lower prices by unauthorised sellers. In other words, genuine brands are bought from one market and imported and sold in another market without the consent of the owner of the brand. Grey market goods are readily available at discounted price online, questioning the brand exclusivity. Their growing prevalence in the Indian fashion market cause serious impediments in the growth of the fashion industry. In India, many online stores already sold apparels and accessories from companies like Abercrombie and Fitch, Aeropostale and so on even before these companies had opened stores in India. [1]

Awareness and collaboration of the brands with local authorities are helping to tackle this pricky situation efficiently. Courts and other related authorities are gaining the required expertise and knowledge to develop a robust IP jurisprudence to tackle and help brands in trademark infringement. Christian Louboutin v. Nakul Bajaj & Ors[2] is a notable case where the Delhi High Court granted protection to Cristian Louboutin stating that the brand would suffer grave loss if injunction was not granted. The plaintiff filed a suit against the defendant stating that the defendant sold the plaintiff’s luxury products on their website by misrepresenting them to be affiliated or sponsored or approved by the plaintiff. The plaintiff claimed that there was a infringement of the trademark and end of the opulence and exclusivity enjoyed by the plaintiff on it’s products because of their display on the defendant’s mark. Courts understand the need to protect the brand with alacrity and rapidly gaining confidence and expertise in doing so.

Hermès v. Da Milano[3] is another example where the courts showed their expertise in dealing with grey market goods and protecting the plaintiff against trademark infringement. The court granted preliminary injection to Da Milano from selling handbags that resemble the Hermès’s Birkin Bag. However, later the two parties settled the case outside the court where the plaintiff allowed the defendant to sell their handbags without the legally protected element i.e. the ornamental or decorative part of the plaintiff’s handbag viz a horizontal belt and flap having three protruding lobes.

The Indian government and courts are working to curb the problem if not eliminate it. Though the courts are ready to tackle problem of counterfeits and the grey market goods, it is important for the brand to be vigilant about the unauthorised trade of their products. One cannot simply ignore the fact that sometimes these high-end luxury brands themselves directly sell their good to the grey market players or turn a blind eye to such sales to boost their sale revenue. This is done to improve short term results and unload the excess stock. The proprietors of these well-known brands should avoid such practice for short term results and be more prompt in acting against the grey market players and counterfeits to avoid dilution of their well-known marks.

[1] Business Standard, https://www.business-standard.com/article/companies/india-s-online-grey-market-for-us-clothing-brands-112080400101_1.html 25th January, 2013

[2] Christian Louboutin SAS v. Nakul Bajaj & Ors., CS (COMM) 344/2018

[3] Ranjan Narula, Mayur Varshney, ‘Countering Counterfeits’ , 25^th December 2017 https://www.legaleraonline.com/article-detail?newsname=countering-counterfeits

FAST FASHION & MODERN SLAVERY

The economies across the world have been badly affected due to the ongoing pandemic. Simultaneously, various stores across the globe had been shut for weeks and consumers were observed spending on necessities, as opposed to fashion. However, several suppliers with respect to some popular “fast-fashion” brands have reported a huge growth in sales during the present situation.

These fashion brands are usually based on fast fashion model. These fast fashion model based establishments are a range of low-cost, swift and trend-driven apparel manufacturers with their extensive social media footprints, digitally-native operations, and associated to bunch of Instagram-famous endorsers. Majority of these brands constantly engage in rampant labour and wage abuses, all in the name of lightning-fast fashion, in order to cop up. Worst living conditions, disturbing workplace infrastructure accompanied by pay rates far below the minimum wages are some of the factors on which these brands built upon.

Thus inappropriate social distancing measures, and continued business operation amidst the current lockdown periods lead by the employer brands has become the heart of the problem. While these fashion brands showcase themselves as employee and environmental friendly, they often fail to comply with labour laws, workplace health and safety, and environmental regulations. According to recent report formed by Thomas Reuters Foundation (London), Britain is home to at least 100,000 modern slaves and 90% of victims may be going undetected.[1]

[1] Big Story, Thomas Reuters, https://www.reuters.com/article/us-britain-slavery-trfn/uk-has-100000-modern-slaves-but-most-go-undetected-study-says-idUSKCN24E1IE 15/07/2020.

Traditional Fashion Trends and Law

Fashion Industry is often associated with its modern manifestation by the way of designer apparels showcased on-ramps. However, the fashion industry also includes the traditional fabrics and designs created by the indigenous weavers and knitters and their authentic style of clothing within its purview. These traditional designs are accumulated, nurtured, and bequeathed from one generation to another within the native communities. India being a powerhouse of such traditional fashion designs represents fashion from the Pashmina of Kashmir to the Sanganeri block prints of Rajasthan to the Kasavu saree of Kerala to Shaphee Lanphee shawl of Manipur. These are not only popular in the national markets but also in the international market. Subsequently famous brands and designers also attempts to incorporate them into their designs

The co-existence of the original and imitation fashion designs, for instance, the original handwoven Banarasi Silk Sarees with intricate designs by the Varanasi artisans and their cheap imitations, made of synthetic silk, sold in the Surat Market poses a major challenge in protecting these traditional designs. The present legal framework fails to effectively protect these time-honoured cultural expressions in the fashion industry.

The traditional fashion art can be protected under Copyright Law when the knowledge and idea are fixed in a material form (“artistic work”). However, copyright laws simultaneously favours the creation of derivative works, which in contrary may lead to misappropriation of these cultural expressions. Further, these works generally belong to a community and so it is difficult to identify a single owner of the work which is required under copyright law. These indigenous designs may be protected under Traditional Knowledge but there are no codified laws to deal with the issue in India. Consequently, the WIPO countries are also negotiating to form an international legal framework to effectively protect the Traditional Knowledge.

The culturally rich fashion apparel of India can also be protected under the Geographical Indications of Goods (Registration and Protection) Act 1999 (referred to as ‘GI Act’ hereinafter). Unlike copyright law, the GI Act provides protection for 10 years with unlimited renewals to the registered GIs and can be owned as collective property. GIs provide an economic boost to the communities, escalates the quality and productivity which acts as a catalyst in the promotion and development of these traditional fashion works.

Nevertheless, protecting traditional fashion under the GI Act is not free from inconsistencies. The registration process is often strenuous, and the act provides no protection against infringement for unregistered GIs (Section 20 of the GI Act). Further, the knowledge and process used to reach the indication is not within the scope of the GI Act. Moreover, India is not a signatory to the Lisbon Agreement on the Protection of Appellations of Origin and Geographical Indications, which exempts it from a single filing system for various countries. This adds to the misery since the cost of filing and renewals in each country are huge. This is further amplified by the lack of awareness about their rights.

India’s accession to the Lisbon Agreement could act as a catalyst in upgrading the law for protecting traditional fashion works under Geographical Indications. The spread of IP awareness among the locals, updating the IP laws, and international recognition to such national IP systems can help to protect India’s traditional fashion. Nonetheless, the best solution, lieu of the above facts would be a custom-made legal framework to effectively protect the traditional fashion assets and the fashion industry at large.

Fashion Industry and IPR Dilemma

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.