It is often said that imitation is the sincerest form of flattery but that does not necessarily hold true in the fashion industry where the designs are produced to gain a monetary benefit. A fine line exists between inspiration and imitation. With the passage of time and globalization, the fashion industry has grown into an indispensable part of our life. The industry is a fast paced and ever-growing phenomenon with new designs coming up almost every day and old designs going in and out of fashion on a regular basis. The growing usage of social media and the online medium is making fashion designs and brands easily accessible and giving it a broader reach than ever. While there are positive implications to this accessibility, this is impacting the fashion industry in a negative manner as well because the wide circulation of the design leads to copying with little to no legal remedies.
In the recent past, there have been numerous cases of designs being copied on various levels. There are situations wherein knockoffs are created by small companies that sell the designs of high-end brands at cheaper prices in an attempt to pass off the copied design as an original. This causes problems for the creators of the designs as the customers tend to get tempted by the cheap prices of the knockoffs and opt to buy those instead of the original products. This is unfair for the creators as their "intellectually created products" tend to be sold at lower costs, thereby robbing the fashion industry of creativity and uniqueness and reduces the value of such designers.
One of the first case surrounding knock-offs included the case of Rajesh Masrani vs Tahiliani Design Pvt. Ltd., FAO (OS) No.393/2008. Here, the plaintiff was "inspired" by the designer Tarun Tahiliani and thus, created a knockoff of his work titled KMJ from one of his collections in 2006 that consisted of a grey-black print on a white background, using floral and paisley motifs that indicate Mughal inspiration. The Court granted an ex parte injunction in favour of Tahiliani.
There are other cases wherein big designers and fast fashion brands have copied or replicated the designs of relatively smaller individual brands. Due to fashion not being explicitly protected under any IP Law in most countries, large brands tend to get away with stealing such designs. Some examples include Gucci replicating one of Dapper Dans designs, Chanel included the designs of another designer in 2015 and presented it on their runway without informing the designer or giving due credit to her, Zara was called out for imitating pins from Tuesday Bassen along with copying sandals by designer Aurora James of Brother Vellies in 2016. There have been numerous similar cases wherein designs have been copied without giving due credit, which increases the need for protecting these designs on a larger level.
The protection granted to artistic designs and the brands of creators can be availed through intellectual property rights that aims at protecting the interests of the creators and granting them exclusive rights over their works. In India, such protection is in its nascent stages and there is still lack of clarity with respect to the kind of protection that could be accorded to an individual who owns designs. Trademarks play a vital role in protecting the brand name or logo of a company that assist in the recognition and distinction of one company from another but does not play a huge role in protecting designs per se. In 2016, a series of lawsuits were filed between Gucci and Forever 21 as Gucci claimed to have trademarked some "stripes" as theirs, that were copied by Forever 21 in their clothing. Forever 21 claimed that such color combinations were commonly sold by other parties as well and finally, the case was settled in 2018 for an undisclosed amount. This indicates that trademarks play a huge role in protecting certain designs that assist in brand recognition.
The ownership of design generally tends to include originality and a certain kind of unique creativity that distinguishes each designer from the other, thereby making such brands and designs capable of being granted protection under the IP regime. Such designs can often be protected under the Designs Act, 2000 if they are being industrially reproduced and in certain situations, the Copyright Act, 1957 under the ambit of "Artistic Works". This permits the designers to exclusively reproduce or copy their designs provided it is done at a smaller scale. Design Law plays a greater role in protecting the designs of brands that follow fast fashion and sell more than 50 copies of each product.
However, registration of IP proves to be an expensive and cumbersome affair as trends in the fashion industry change on a day-to-day basis and getting designs registered on a daily basis might prove to be futile especially since the process sometimes tends to take years. There is also very limited awareness about the protection of fashion designs as intellectual property and the commercial exploitation of the same.
Notwithstanding this, there have been a few designers such as Sabyasachi, Ritu Kumar etc. who have gone ahead and protected their designs under the various IP Laws. However, it is relatively harder for smaller designers to afford this type of protection and are generally at the receiving end of such copying. Thus, protection can only be granted to those who can afford it and even then, there is no guarantee of the product being entirely devoid of any infringement. This increases the need for stringent IP laws for designers that seek to protect their rights. The current IP regime requires serious changes in terms of the time it takes to register a particular IP and there needs to be an inclusion of fashion specific provisions in each IP Law considering the growing demands of the industry. Additionally, owing to the changing demands of the industry, protection should be granted in a speedy manner for a shorter period of time. There need to be proper provisions pertaining to knockoffs, piracy and counterfeiting in the fashion industry as that would help in strengthening the industry and economy in the long run.
IP Rights Against Knockoffs In The Fashion Industry
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.