FASHION LAW

-Blog by Rujuta Jog.

INTRODUCTION

Fashion Law is also known as Apparel Law. Fashion is a massive industry that strives in a competitive global despite with minimal legal protection for its creative designs. The term Fashion has its different meaning for different people. French fashion designer Coco Chanel defined, “Fashion is not something that exists in dresses only. Fashion is in the sky, in the water, in the streets, fashion has to do with ideas, the way we live, what is happening,”

The fashion industry is a global phenomenon with an international language understood by millions of people. Up to the date, fashion brings more and more fans willing to pay large sum of money to feel and to look about their own appearance and adornments. This increased interest has caused the fashion industry to face many challenges that were not there in the past. Consequently it becomes necessary to set the norms as well as the rules.

As a result fashion laws came as a brand of new legal sanctity that involves several and special issues of Intellectual Property Rights particularly trademark, copyright law and at times it also includes the Patent and Trade secrets.

Fashion lawyer assists their clients on legal issues confronting the style, material, quality, extravagance, footwear, and gems, beautifying agents- cosmetic business.

FASHION AND LAW

Fashion cannot be defined solely by our clothing, but it can also be conveyed the way we carry ourselves and the personality we all have.

On the other hand, the word Law implies to have the sovereign power of such rules of conduct expressing the will of the ruling class as established by the legislation or sanctioned by the government. The definition of law given by the Blackstone is of utmost important in this regard, “A rule of action prescribed and dictated by the superior which some inferior is bound to obey and is applied indiscriminately to all kinds of action whether rational or irrational.”

Fashion law is an emerging legal speciality that encompasses issues surrounding the life of a garment from conception to brand protection.

Different parts of Corporate, Land, Assessment, Trademark, Business law and other Intellectual Property Rights related issues additionally become possibly the most important factor of fashion law.

BACKGROUND OF FASHION LAW

Fashion law is area of law that deals with the various segments of intellectual property rights such as copyright, patent, trademarks, trade designs etc.

It was in the year 2008, Susan Scafidi, the United States law professor for the first time offer a course in fashion law and after that this subject of fashion law has been recognized as a distinct field in the sphere of law. Although a highly focused special fashion law is quickly growing field with the advancement of new technologies. Several Americans as well as European schools have dedicated programs related to the fashion law.

But if we look to the other side, we will find Paris, France as the historical capital of fashion in the world. Fashion trend formed an important aspect in the French lifestyles in the 17th century. The trend has also witnessed circulations of cheaper versions of fabrics. The changes were brought in the year 1920 when fashion was easier to copy and more accessible. Copying continued to be the biggest problem in the field of fashion.

The copyright extensions find its roots in the English and French copyright system that protects the fashion designs. However the patent law was not designed to protect the fashion and its culture. Designers need a system to protect the designs before and after being made public where limitations would seep into the market under cutting the designers price and creating a backward bending curve as far as the demand of designer’s apparel was concerned.

LEGAL DEVELOPMENT IN FASHION LAW

Traditionally, fashion has enjoyed only limited intellectual property protection in the United States, where clothing design has been considered such an essential part of culture development that copycats have been encouraged by the market and the lack of legal constrains. Readers may recall the classic scene in “The Devils Wears Prada,” in this scene, runway magazine editor Miranda explains this phenomenon.

A recent Supreme Court ruling, Star Athletica, LLC vs. Varsity Brands, Inc. 580US 2017-

The court held that, graphic designs applied to useful articles can be subject to copyright, even if those designs are apparently essential to the usefulness of the article.

However it also means that independent artists will now have recourse when their designs are mass produced without permission by behemoths like walmart.

The fashion industry is using the law to combat human rights abuses long associated with “fast fashion.” An international organisation called fashion revolution is leading the charge to provide safe working conditions and fair wages for everyone employed by the industry, including floor shop labourers in developing nations. International scrutiny of these issues increased significantly in the wake of the November 2012 Tazreen fashion factory fire, which killed at least 117 workers in Dhaka, Bangladesh.

FASHION LAW IN INDIA

Nothing the rights guaranteed in United States of America and in the European countries, India stands not far behind.

Before the next collection for designers is launched, one question that disturbs the designers the most is how to prevent others from copying their original work? The fashion foundation of India seeks protection of the intellectual property rights against infringement and rampant copying. It will actively research, through its research and analytics cell, and commission studies to bring fourth various aspects of the fashion industry. It will also set up a legal cell to assist the design houses in matters including IPR, licensing, contracts, and arbitration. Only design houses can apply for membership of the foundation and a business representative nominated by each design house will be a member of the foundation. A jury comprising of persons directly linked to fashion will review and analyse each membership application. One can clearly map the similarities between the objects of the fashion Originator’s Guild in the USA and the fashion foundation of India. The current legal framework provides an interesting mode to protect the creativity in fashion.

A substantial number of fashion designers rely on indigenous and traditional crafts, dyeing, block printing and embroidery techniques to create new designs and structures. However, conflicts are bound to arise where ancient art forms and handicrafts stand outside the purview of IPR. It would logically follow that designs that primarily rely on such forms of art and handicraft naturally stay outside the purview of intellectual property regime. It is beyond the reason of justice to grant IPR to derivative fruits based upon ancient and traditional knowledge, where the roots of such knowledge and intellectual creations stand beyond property rights.

The intellectual property regime in India provides for the protection under the design act 2000, the copyright act 1957, and the geographical indications of goods (registration and prohibition act) 1999. Although there seems to be three different legislations that protect the regime of fashion apparel and designs. The artistic works in the sketches of the designs is protected under the copyright act 1957. The design act 2000, provides protection to the non functional aspect of n object having visual appearance which include the features of shape configuration, pattern, composition of line and colour pattern. The third schedule of the designs rules 2001 provides an exhaustive list of products and articles in respect of which an application can be made to the controller. Such design right remains in force for a period of ten years extendable to the certain conditions for a total period of 15 years.

The penetration of internet has made accessible the “duplicate goods” to consumers from every section of the society. These practices certainly questions the Indian IP enforcement mechanisms but also casts doubt over the competency of present IP laws in fashion industry as a whole.

@dietsabya, an Instagram handle inspired by New York based @diet_prada; social media fashion watchdog has been incessantly working to make the public aware about the blatant plagiarism by the designers themselves, sometime from young college students and sometimes foreign designers.

Rohit Bal in 2017 became the first designer in India to get copyright over his entire collection and the spree was followed by other famous Indian designers thereafter.

The Delhi High Court in the case of Crocs Inc. USA vs. Aqualite India Limited, while dismissing the suit filed by the multinational footwear manufacturer Crocs, held that a suit for action against passing off solely based on a design registered under the design act, 2000 is not maintainable.

The Delhi High Court in the case of Rajat Sharma vs. Ashok Venkatramani & Anr, false advertisement of Zee media about their news channel. HC upheld the celebrity rights of Rajat Sharma to his name and also recognized his publicity rights over the show “Aap Ki Adaalat.”

One thing is clear the ad-hoc approach would serve no purpose and comprehensive and focused approach needs to be followed that cater all the interest of fashion industry in the country.

FASHION LAW IN FOREIGN COUNTRIES

United States of America: Fashion law in the United States of America has traditionally and historically been denied the copyright protection. The United States does not include garments or fashion designs in its list of copyrightable subject matter. Fashion has been integral part of the copyists’ regime although it stands more in current years. In United States of America several forms of intellectual property are available for designers. Under the trademark law, a designer may protect his fashionable goods by investing in a distinctive logo and trade name that the consuming public recognizes as an indicator of the fashion article’s resource. A designer can seek trade dress protection in United States of America in the overall look of the product to the consumers. Designers may apply for the design patent which protects new and original designs of the manufacturer.

The most recent protection that is granted is Innovative Design Act of 2012. This act grants protection to the fashion designers for a period of three years and would prohibit the claim that a fashion design was copied from a protected design.

Humphrey Bogart’s heirs sued Burberry for using an image of the actor wearing the iconic trench in the movie” Casablanca” on its website and Steve McQueen’s family sued Ferrari before the superior court of Los Angeles for using the name “McQueen” on a model made to celebrate the 70th anniversary of the brand.

France: Historically, Paris, France has been recognised as one of the fashion capitals, the others being Milan and New York. France enjoys the most extensive and longstanding legal rights in connection with fashion designs. It copyright system extends protection to any “original work of the mind.” The French copyright requirement differs from the United States.

The most current form of copyright law in France comes in the form of Article L. 112-2.73 in the Code de la Propriete Intellectuelle. The Code lists “the creations of the seasonal industries of dress and articles of” as a protected subject matter, and “uniform protection is given to original fashion designs automatically on the date of creation, regardless of registration, unlike different protection schemes given to registered and unregistered designs under the European Union regulations.” French copyright law grants “originators of all creations of form, even the most modest, and a generous bundle of economic and moral rights for a term of life plus fifty years from creation,” and has allowed for the protection of an array of original designs of Parisian houses against copyrights.

Over the past several years, two key cases have been filed against Zara in France. Designer Vanessa Bruno filed out suit against the Spanish fast fashion giant for copying an original dress design. (CA Paris, Oct.17, 2012 Vanessa Bruno vs. Zara France)

Similarly, Paris-based design house Celine filed suits against Zara for copying a shirt design. (CA Paris, Feb. 27, 2013, Celine vs. Zara France.)

Italy: On 12 September 2019, the CJEU issued the long-awaited decision on the Cofemel case C-683/17, which opened a new path for the copyright protection of designs in the EU and in Italy. The lawsuit was brought by G-Star, that accused Cofemel of copying its designs related to jeans, sweatshirts, and t-shirts products, claiming that its models constituted original intellectual creations qualified as “works” and protected under Portuguese copyright law. Looking at the Italian legal systems, this would also suggest that the “artistic value” requirement provided by Article 2, No.10 of the Italian copyright law in addition to originality for a design to access copyright protection in Italy does not comply with Article 2(a) of the Infosoc Directive.

Another prestigious brand sued by celebrity for using his name without asking for the authorization! Most recently in Italy, the case brought by legendary football player Diego Armando Maradona against the fashion brand Dolce & Gabbana for using his name on a t-shirt worn by a model during a fashion show held in Naples a few years ago. In particular, the t-shirt carried the number “10”, i.e. Maradona’s number while he was playing at Napoli, and had the same blue and white colour combination as Napoli’s soccer team jerseys. However, Dolce & Gabbana created it to celebrate some of the symbols of the city of Naples and the t-shirt was never put on the market for sale. Court of Milan noted Article 8 of the Italian Intellectual Property Code, which prevents the registration as a trademark of third parties’ own image, name and well-known signs, is specifically aimed at enabling celebrities to exploit the “allure” of their reputation by means of merchandising.

CONCLUSION

Fashion Industry is the ever growing and evolving industry which is most likely would never go down. And thus, for fair play to persist in this industry, stricter laws are required.

Time goes by and society is in constant development with growing needs, the different jurists and scholars find the fashion law as one of the relevant entities creativity Intellectual Property Rights as the sole protector of fashion designs.

The threat that is copying and counterfeiting results not only in monetary losses but also demotivates the designers to creating something new and innovative. Piracy kills creation and thus, eradicating piracy is of foremost importance. Thus, this research paper reveals the importance of intellectual property laws in fashion industry and increasing awareness about fashion laws and their impact in this globalized era.

References:

www.Thefashionlaw.com

Harris County Law Library

Harvard law

Connect with me:

Instagram:- _lawareness

Email: teamlawareness@gmail.com