Fashion is about something that comes from within you.In the words of the popular designer and Entrepreneur Ralph Lauren
Fashion is a form of self-expression – through clothes, shoes, accessories, hairstyles, etc. It is a physical and material form of expression. Moreover, it is not only that, but it is also an art, it is a business and it is a profession. Fashion is one of the most lucrative industries right now. It is true that Fashion is ever-changing and ever-evolving. Fashion is intertwined with our lives. It is culture, it is a hobby, it is a passion. The significance fashion holds in our lives is vast.
It should be noted that in India Fashion is still a growing industry. India’s apparel market alone will be worth $59.3 billion in 2022. This will make it the sixth-largest in the world. In light of all of this, we see a vacuum in any consolidated form of law for Fashion. Due to the various elements involved in Fashion, many different laws are applicable to fashion.
Fashion is an innovation. A huge part of fashion these days involves developing unique designs. Every famous fashion house has a unique style. Fashion is not just a mass requirement and production of clothes and shoes. Instead, it is a luxury. People pay hundreds of thousands to dress in unique styles. Since there is a demand for such products, designers spend arduous hours developing such unique styles and designs.
Does this imply that fashion designs are Intellectual Property?
It is safe to say that designs qualify as IP. The regulation of IP is under the purview of Intellectual Property Rights (IPR). There are three types of IPR that may be applied to the fashion industry- copyrights, patents and trademarks.
The term Copyright (or author’s right) is a legal term used to describe the rights that creators have over their literary and artistic works. As fashion is created and it is an art, (as discussed above) the designs are intellectual property which can come under copyright.
In India Copyright is governed under Copyright Act,1957. Under the provisions of the Act fashion fits as ‘artistic work’. 1Copyright Act,1957 S. 2(c) The Act explains copyright as having or possessing exclusive right over such artistic work.
In addition, when it comes to artistic work in the case of copyright it is inclusive of and not limited to reproduce the work in any material form including the following,—
- storing of it in any medium by electronic or other means; or
- depiction in three-dimensions of a two-dimensional work; or
- depiction in two-dimensions of a three-dimensional work;
- communicate the work to the public;
- issue copies of the work to the public not being copies already in circulation;
- include the work in any cinematograph film;
- make any adaptation of the work;
Admittedly the major reason copyright has become so essential when it comes to fashion is due to – design piracy and knock off. It is understood that it takes a great deal of effort to create an original design. When these original designs hit the market and take off, it gives way for a mass sale of cheap knock offs. Imagine how it feels when you work so hard to make something out of scratch and someone else benefits merely by copying you?
One famous example involving copyright is of the famous brand Varsity. The landmark case was for Varsity’s’ uniquely designed cheerleader uniforms, some may even consider these signatures styles. The US Supreme Court explored the dept of the fashion industry. While the Supreme Court stated that the cut and outline of the cheerleader uniform wasn’t the sole property of Varsity, the combination of colour code, shapes, stripes, and chevrons was indeed unique and was the property of Varsity.2 Star Athletica, L.L.C. v. Varsity Brands, Inc., 137 S.Ct. 1002 (2017)
Patents in India are governed under the Patents Act, 1970. As per the Act – new invention means any invention or technology which is not expected announcement in any document or used in the country or elsewhere in the world before the date of filing of a patent application with complete specification. This simply means that the new invention is original. The invention was first invented by the person/organisation filing for the patent. It is only an invention that can be granted a patent.
Fashion involves a lot of elements. Especially, when we take the case of material and developing of new material, that can clearly come under patent. As these days every industry has a robust R&D department, fashion products are capable of attaining patent. One of the main reasons behind not using patents is that the procedure is a bit complicated. Another reason is that the trends in the fashion industry are constantly changing, procuring a patent may not be worth the effort.
That articles of clothing should generally be protected under design patents unless they serve a functional aspect. If the article of clothing has any type of novel and purposeful functionality- such as a breathable fabric, a unique attachment, or a special pocket- it should first and foremost be protected as an object of utility. If the most important aspect of the clothing is the ornamental appearance, it can be patented as a design.JD Houvener, USPTO Certified Patent Attorney with Bold Patents
A trademark is a sign capable of distinguishing the goods or services of one enterprise from those of other enterprises. A lot of brands use trademarks. Huge fashion houses have become brands in their own rights. So, they are capable of holding trademarks.
Recently, there was a trademark dispute between Swedish fashion house H&M and Indian HM Megabrands Pvt. Ltd. & Ors. 3Hennes & Mauritz Ab & Anr v. HM Megabrands Pvt. Ltd. & Ors, IA-7259/2016 (May 31, 2018) HM Megabrands also uses the acronym ‘HM’. H&M claims that the similarity between in the acronyms is puzzling and thus sums up to trademark infringement. Whereas, HM Megabrands maintained that the acronym was derived from the initials of its co-founders – Hashim Merchant and his brother Hamza Merchant. Ultimately, the Apex court held that having a similar trademark, especially to that of a well-established company is an unconscionable way of conducting business.
The goodwill of well-established companies is an easy target for those looking to make a quick buck.
Advertising is considered essential in any organization. As this is what makes the consumers aware that your product exists. Any product or organizations USP’s have to be communicated to the consumers. Advertising incurs cost but it has the potential to bring valuable business to any company.
Many fashion houses use advertising as a means to attract customers. They employ celebrities to attract even more customers. For example – Manyavar advertisement featuring Virat Kohli and Anushka Sharma, Levi’s in 2017 came up with the catchy song let’s live how we dance, in 2018 use your song and in 2019 the holiday commercial. All of these advertisements have been fundamental to the success of these fashion houses.
India doesn’t have any formal or consolidated statue in place for the governance of advertisements. The responsibility for regulation of advertisement is bestowed on the Advertising Standards Council of India (ASCI). 4https://ascionline.org/index.php/mission.html The organization was formed in 1985. It is a voluntary self-regulatory committee. Their objective is to ensure that the claims made in the advertisement do not result in damage caused to the customers. Which includes honest representation, public decency, and following the market norms.
Design Act, 2000
The objective of the Design Act, 2000 is that the legal system of the protection of industrial designs requires to be made more efficient in order to ensure effective protection to registered designs. The primary focus is on industrial designs. Designs are crucial to fashion as. So, do fashion designs come under the purview of industrial designs?
According to WIPO – In a legal sense, an industrial design constitutes the ornamental aspect of an article. An industrial design may consist of three-dimensional features, such as the shape of an article, or two-dimensional features, such as patterns, lines or colour.
‘Design’ means only the features of shape, configuration, pattern, ornament or composition of lines or colours applied to any article whether in two dimensional or three dimensional or in both forms.Under the Design Act, 2000
From the two explanation of industrial design and design, we can interpret fashion designs. As fashion designs can both two-dimensional – as sketches and three-dimensional – like products. Fashion designs are also fundamentally associated with shapes, patterns, colours, etc.
Furthermore, under section 11 the registered designs are capable of achieving copyright. For this to be done, the design has to be registered as under section 10. After registration, the proprietor will have the copyright for 10 years. If before the expiration of 10 years the proprietor wants to renew the copyright, he/she on payment can renew it for 5 years.
The Textiles Committee Act, 1963
The objective of the Act is to provide for the establishment of a Committee for ensuring the quality of textiles and textile machinery. The Act was amended in 1973. This Act is important when it comes to the fashion industry, as textiles within the meaning of the Act, consist of the raw materials used in creating and manufacturing clothes, shoes, accessories etc, which is what comprises fashion. Textiles mean any fabric or cloth or yarn or garment or any other article made wholly or in part of – cotton or; wool or; silk or; artificial silk or other fibre. 5Textiles Committee Act, 1963 S. 2
This Act can be considered quite advantageous. Functions of the committee under section 4 allow the committee to establish R&D, inspect the quality of textiles and textile machinery. One of the reasons this Act is so important for the fashion industry is the taxation rule under section 54. This section lays down that tax will be levied on every textile and textile machinery manufactured in India. Sub-section (1) states that the rate will not exceed 1 per cent ad valorem as the Central Government may fix. The proviso clause to sub-section (1) exempts textiles manufactured from handloom or power loom. Additionally, sub-section (2) states that the charge of sub-section (1) will be along with any other tax created by any provision in force at the time.
The committee is allowed grants by the central government under section 6, these grants will be utilised by the committee in performing their function, which as stated above includes – R&D.
Humans for the longest time have used animals to clothes themselves. In ancient times animal skins were used out of necessity. Many, use raw materials from animals for fashion. Every year, billions of animals suffer and die for clothing and accessories. Leather can be said to be a fashion trend that has been constant throughout. It is used to make jackets, gloves, shoes, belts, wallets, etc. Then there is wool, used to keep humans and cosy during harsh winters. Let’s not forget fur, until recently fur was considered very fashionable. The method of procuring fur as a raw material is most dreadful and cruel. But this comes at a price. A price we human don’t pay. Is fashion worth animal cruelty? No. It most certainly is not.
As fast fashion is growing, there is an urgency now more than ever before, to quickly produce more products, with new designs every season.
The humanitarians in the world have taken notice of this. The world has moved towards a fashion industry free of cruelty. Owing to the same, the products procured from animals are now being replaced by their synthetic industrially manufactured version.
Inevitably, animal rights activists from all over the world for at least the past decade have rigorously campaigned to ban animal cruelty from the fashion industry. It can now be said that their work is paying off. In India, section 428 of the IPC states that in case of mischief by killing or maiming animal the punishment imprisonment of either description for a term which may extend to two years, or with fine, or with both.
It is quite clear that fashion houses have to beware of harming animals not merely to meet industrial standards. Rather as it is our duty as human beings to protect those in need of our protection.
The fashion industry like any other thrives due to the multitudinous people working tirelessly to make it a success. The same is also known as the labour force of the industry. The law governing the labour force or the workforce is labour law. This consists of laws related to administrative rulings, and precedents which address the legal rights of, and restrictions on, working people and their organizations.6https://ncib.in/pdf/ncib_pdf/Labour%20Act.pdf
The labour laws we have today are a result of contrast – the demand for better working conditions by the workers or employees and more control over the workers or employees by the employers. A few main reasons for the requirement of labour laws – collective responsibility needs to be balanced between the employers and the employees, provision for what is popularly known as workers or employees or trade union and the interactions of the three parties thereof – representatives of employees, employees and the employers. To uphold the principles of justice, equity and good conscience.
There are a number of labour laws –
- Apprentices Act, 1961
- Employees State Insurance Act, 1948
- Employees Provident Fund And Misc. Provisions Act, 1952
- The Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959
- Factories Act, 1948
- Industrial Disputes Act, 1947
- Labour Laws (Exemption From Furnishing Returns & Maintaining Registers By Certain Establishments) Act, 1988
- Payment of Bonus Act, 1965
- Payment of Gratuity Act, 1972
- Workmen’s Compensation Act, 1923
- The Trade Unions Act, 1926
- Shops and Establishment Act, 1954
- Laws related to wages
- Laws related to child labour
- Law related to contract labour
- Maternity Benefit Act, 1961
Like in any business contracts are an essential part of the fashion industry. The foundation of any business is derived from the contracts and agreements signed between people who start it. When it comes to the fashion industry contracts are required when there is an agreement to procure raw materials or purchase of machinery. Even when there are advertisements there needs to be a contract for that. This is so as a contract is what ensures the liability of the parties involved. In India, contracts are governed under the Indian Contract Act, 1872. Below mentioned are a few key elements essential to satisfy a contract –
- There needs to be an offer and subsequent Acceptance.
- An intention to create a legal relationship must exist.
- Lawful Consideration, consideration
- Competent parties – the parties should be major, of sound mind and not disqualified by law.
- Free consent – consent of both the parties especially the surrogate mother should be free from coercion, Undue influence, Fraud, Misrepresentation and/or Mistake
- Lawful Object – this is where it gets tricky, is growing a baby not biologically related to you lawful? What we know is that it isn’t unlawful. There is a vacuum of law here.
- The purpose of the contract should not expressly be declared void.
Fashion is a rapidly growing industry. As the industry grows the need for regulation will also grow. As of now, there is no consolidated law to regulate fashion. A variety of laws are followed. This is quite a task for the people involved in the industry, as they will need to comply with all of these laws. Fashion laws as a subject is not a part of the curriculum of many law schools. Correspondingly, as the industry grows the scope for fashion laws as a career option will also grow. This is a contemporary field, which has the potential to open new avenues for anyone interested in pursuing.
Fashion never goes out of fashion.