India: Exploring Legal Spaces in Fashion

Last Updated: 5 September 2006
Article by Manisha Singh

Creativity is not an IP

"Fashion is not something that exists in dresses only; fashion is something in the air. It's the wind that blows in the new fashion; you feel it coming, you smell it ... in the sky, in the street; fashion has to do with ideas, the way we live, what is happening." (Thus spake the legendary designer Coco Chanel)

Fashion is a massive industry that thrives in a competitive global environment. Its economic and cultural influence is enormous and it invades every possible creative sectors. The fashion industry primarily depends on creativity which is considered to be of a fundamental nature and impractical to be owned outright as a property. It is precisely because fashion pervades many aspects of our lives. The sharing and appropriations of creativeness is the foundation of the assimilation of fashion in the social fabric.

The fashion industry protects its brand name and logos, however the actual creative design is not owned by anyone. Creativity is a collaborative and community affair as it is far too immense and evolving for any one to "own" as a legal entitlement. In general, creative derivation is an accepted premise of fashion. Ideas arise, evolve through collaboration, gain currency through exposure, mutate in new directions, and diffuse through imitation. The constant borrowing, repurposing, and transformation of prior work are integral to creativity in fashion.

What is protected in Fashion Industry

Fashion law is a specialty that deals with the issues of intellectual property, including copyright and trademark law, business law, licensing, textiles and merchandising.

A more comprehensive definition of fashion law consists of providing advice on intellectual property and commercial matters to fashion houses, designers, manufacturers, distributors, and retailers. It covers everything from branding, protection, and enforcement of intellectual property rights to the non-contentious commercial side of the business, such as licensing, manufacturing, and distribution contracts and agency and franchising agreements.

Fashion law is a unique specialty because of its focus on intellectual property. A fashion attorney is expected to advise his or her clients on all forms of protecting copyright and trademarks, as well as the newer database and design rights. Another friction area of imitation of ‘style’ of fashion houses by ready-to-wear retailers is becoming increasingly frequent on the issue of the knock-offs. More and more discount retailers and independent entrepreneurs "borrow" expensive designs to create inexpensive and affordable imitations.

It is well-settled that you can't copyright an idea. But you can trademark a logo, shape or image, such as Louis Vuitton's classic monogram and knock offs of that logo are illegal. But there is a grey area in fashion where a cheaper brand copies the style of a dress, purse or a shoe. For example, everyone knows what the "wove leather" of a Bottega Veneta bag looks like. But does Bottega Veneta own the trademark to all woven leather bags? No.

Comments

A probable answer to the grey area in fashion is a Fashion Design Anti-Piracy Act but prohibition on copying dresses and the like looks like a murky debate over how to separate a duplicate garment from one simply inspired by someone else's work and part of a fashion trend. The debate can further advance that a clothing design is an utilitarian item and not an artistic expression or scientific invention. However, logos and design signatures are protected from passing off under the trademark law.

The right of artists and designers has to be protected if the dress or any fashion item is an exact copy with a stolen logo which is already illegal under current law. But to implement a law that will stop your average person from buying a dress that looks similar to something that a fashion icon wore to a public place seems wrong.

© Lex Orbis 2006

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