India: The Mêlée Between Design And Copyright Law In Fashion

Last Updated: 23 December 2008

Aspects such as Fashion, where a dedicated statute does not exist, and where aspects from different legislations may be drawn in, often find parties battling the applicability of these to their case. A leading Fashion designer' enterprise was engaged in one such brawl with a less-evident player in the case of Tahiliani Design Pvt. Ltd. v. Rajesh Masrani 2008 PTC (38) 251 (Del.) debating the applicability of the regime of copyright and designs law to decide an interim injunction with respect to an infringement suit.

Two applications praying for interim injunctions were filed to restrain Rajesh Masrani from reproducing, printing, publishing, distributing, selling or offering for sale prints in any form whatsoever that are colorable imitations of Tahiliani Design Pvt. Ltd' fabric prints. Tahiliani Design, under the creative leadership of Tarun Tahiliani has a major presence in the fashion industry enjoying global reputation. Claiming to have four main product lines, couture, diffusion, prêt-a-porter and accessories, the products are stated to cater the high-end market consisting of clientele disinterested in mass produced goods. The goods in respect of which the suit stands forms part of the couture line and they moved to the Delhi high Court to protect the distinctiveness of the garments while evading incalculable damage to reputation. Masrani on the other hand is less known and serves a less exclusive market.

Tahiliani learnt of Masrani having placed an order for sample fabrics from his printer who supplied him with a CD/DVD containing the prints to be executed. The employees of the printer unsuspectingly executed the same on fabric and the printer on seeing the final print realized each and every print to be a copy of Tahiliani' earlier Spring Summer 2006 Collection and Autumn Winter 2006-07 prints. Besides feature-by-feature copying (barring one/two features in a couple of prints) Tahiliani stated that without access to his company' confidential work, such extensive reproduction would not have been possible.

Masrani contended that the work to which protection under the Copyright Act, 1957 was being claimed as "artistic work" were actually designs on textiles and came under the purview of the Designs Act, 2000. It was submitted that these did not constitute "artistic works" as under the 1957 Act and were not capable of protection under S. 14(c) therein. They stated that the suit was liable to be dismissed in view of S. 15 of the Copyright Act, 1957 whereby a copyright would not exist in any design registrable under the Designs Act 1911 or the Designs Act 2000. While contending these grounds, the similarity of the designs was not disputed by Masrani.

It was argued on behalf of Tahiliani that the protection of Copyright was available in view of the fact that they were the author/owner of the creative work of Mr. Tahiliani or of his employees. Drawings made in the course of developing garments were artistic works within the meaning of S. 2(c)(i) of the work. It was also contended that "artistic work" is distinct from "design" and remains "artistic work" per se distinct from the garment on which it is applied and therefore falls under the exclusion as under S. 2(d) of the Designs Act, 2000.

With respect to Section 15(2) of the Copyright Act, it was contended that the provisions were wholly inapplicable to the case, since for copyright to cease to exist in the design, the same must be produced at least fifty times by an industrial process by the owner or licensee of the copyright. In the case, it had been stated that the design had been reproduced not more than twenty times.

Examining the sections vouched, including that on infringement of copyright as well as that dealing with the piracy of the design, along with case law rendered by both parties, the Court concluded that the contentions raised by Masrani were devoid of merit. On the question of the number of prints of a fabric/garment, the Court opined that considering Tahiliani's product lines, each piece needed to have its own creative inputs. Further the court, quoting Roget' Thesaurus defining artist to Couturier, stated that uniqueness not only in conceptualization but also in creation and presentation are sine qua non of haute couture. The Court further opined that for this reason, the Legislature deemed it expedient to exclude an 'artistic work' from the definition of 'design' as under the scheme of the Designs Act, 2000 and to highlight as under Section 15(2). The Court found Tahiliani to have made out a strong prima facie case for the confirmation of the ex parte injunction in its favour, finding the balance of convenience to be tilting in his favour in as much as a chance of unabated copying of the design taking place.

© Lex Orbis 2008

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