Fashion originated thousands of years ago with magnificent traditions behind it. Fashion is an art form that reflects life, it is a language of signs, symbols, and iconography, representing human intellect and creativity. According to Apparel Global Market Report 2022, the global apparel market is expected to grow from $551.36 billion in 2021 to $605.4 billion in 2022 at a compound annual growth rate (CAGR) of 9.8%. The market is expected to grow to $843.13 billion in 2026 at a compound annual growth rate (CAGR) of 8.6%.Plagiarism of designs is a growing concern among the global fashion industry as it is beleaguered by the menace of piracy. In spite of losing a legal battle in 2012, the luxury French brand Hermes since 1997 has been trying to prevent a Chinese menswear brand from putting Ai Ma Shi, a Chinese translation of luxury French brand Hermes, on its products. After a 9 years long legal battle, former NBA legend Michael Jordon in 2020 was able to stop Chinese sportswear maker Qiaodom Sports (which is Michael Jordon’s name translated literally into Chinese) from using its trademarks. The US sportswear company New Balance successfully sued two local businesses for copying its "N" logo and was awarded RMB 25 million (USD 3.7 Million) in damages, which is one of the highest settlements given to foreign corporations in trademark disputes. India is the second largest textile and clothing exporter in the world. The Indian textiles market is expected to be worth more than US$ 209 billion by 2029. The industry contributes 2.3% to the Indian Gross Domestic Product (GDP). The fashion industry in India has seen substantial growth over the last decade, we saw the rise of many homegrown designers, some of whom also achieved international fame. Complaints from Indian fashion designers about their designs being imitated and copied are attributed to a lack of awareness about the intellectual property rights (IPR) that are available to them. Despite the countries growing awareness of IPR protection, the law pertaining to the protection of fashion designers' rights is still not clear in India. Recently, the then Army Chief General M.M. Naravane on the occasion of Army day on 15th January 2021 unveiled an ergonomically designed and operationally effective new combat uniform for the Indian Armed forces. Before locking down on the final combat uniform, 8 different fabrics, 4 different designs, and 15 camouflage patterns were analysed and examined. Designed by the National Institute of Fashion Technology (NIFT) in close coordination with the Army, the uniform will be made available to nearly 12 lakh Army personnel in a phased manner. To find innovative solutions to a plethora of emerging conventional and unconventional security challenges the Indian army is exploring new age technologies, such as Artificial Intelligence, Robotics, 5G, etc. The “digital disruptive” pattern camouflage uniform is suitable for different terrains and extreme weather conditions. With a 70:30 combination of cotton and polyester respectively, the fabric is not only durable and lightweight but also dries quickly, these properties of the uniform tend to provide more comfort during operations in both summers and winters, hence eliminating the need for different uniforms for different environment. This change is brought due to non-conformity with the rugged terrain and weather conditions as terrycot which was previously used, is thought to be uncomfortable in sub-zero and in extremely hot temperatures. Clothing companies often patent a unique design to prevent other companies from imitating it, the army also intends to implement control mechanisms to preserve the exclusivity of its newly introduced combat uniform. Recently, in April army applied for a patent at the Controller General of Patents, Designs, and Trade Marks. The issue of “uncontrolled proliferation” of existing combat uniforms remains a cause of concern as it has led to vulnerabilities in the security of military establishments. Some of the cloth and tailoring shops within the Army Cantonments and stations have already stocked unauthorised variants of the new uniform. Over the next three years, the force will transition to the new uniform. These combat uniforms will only be available only through fixed channels i.e. the Central Procurement and Canteen Stores Department (CSD). This is the fourth time that the uniform of the armed forces have been changed. The first was done just after the Independence to ensure that the troops of India and Pakistan used different uniforms. Since then, again in 1980 and 2005.When analysing the last six years' data from the annual report of Ministry of Defence, the highest number of patent applications were granted , in the year 2017-18 for Defence and Research. Twelve copyrights and Twelve designs were registered in 2018-19, with 170 IPR applications filed. The lowest number of applications were granted in the year 2013-14.
As per Annual Report 2021-22 of the Department For Promotion of Industry and Internal Trade Ministry Of Commerce And Industry (DPIIT), 14225 Design applications were filed in India during the year 2020-21 indicating a significant increase from 10213 in the year 2016-17. Out of 14272 Design applicants filed during the year 2019-20, 9706 design applications originated from India, out of these Indian applications, the highest number of applications were filed in Class 02 for Articles of clothing & haberdashery, amounting to 1275.
The IPR Regime in India provides protection to fashion design mainly under three different legislations, viz., the Designs Act, 2000, the Indian Copyright Act, 1957, the Patent Act, 1970, and the Trade Marks Act, 1999.Section 2 (a) of the Designs Act, defines an article as “means any article of manufacture and any substance, artificial, or partly artificial and partly natural; and includes any part of an article capable of being made and sold separately”. The Act provides protection to a registered design for a period of 10 years from the date of registration, which can be further extended to 5 years. The Designs Act also makes it illegal for anyone to make any “fraudulent or obvious imitation” of a registered design. There exists a huge overlap between the Designs act, 2000 and the Copyright Act, 1957. Although the term "design" is broadly explained in Section 2(d) of the Design Act, it does not include any "artistic work" as defined in Section 2(c) of the Copyright Act. Likewise, the protection under Section 15(1) of the Copyright Act, is not applicable to designs registered under the Designs Act. As a result, once a clothing design is registered under the Designs Act, the Copyright Act no longer applies to it, and the work is only protected under the Designs Act. Section 15(2) of the Copyright Act will provide protection for unregistered designs (capable of being registered under the Designs Act).However, if an unregistered design is reproduced on more than 50 articles, the copyright protection on the design will expire. The term of protection granted under Section 22 of the Copyright Act, 1957 subsists during the life of the copyright owner and for 60 years thereafter. The use of trademark law to safeguard fashion designs is highly constrained. A trademark is only helpful for a fashion design when it is so visibly incorporated into the design that it becomes an element of the design. Further, fashion design that is registered as a trademark cannot be protected under the Designs Act and vice versa.
Clothing can be patented. A patent gives the designer or patentee the legal right to hold a monopoly on a novel idea. The unique design of apparel could be patented with a design patent because here the clothing is not being patented but the unique look of the cloth. Dress patents fall under design patents, owing to their creativity and application. To secure patent protection, the design should be novel and non-obvious and should portray patentable subject matter. Lastly, the proposed item should indicate consumer benefits.
The global fashion industry is expanding at a rapid pace. It has grown to be an important part of the global economy. The demand for design registration and protection has increased as it is the foundation for the fashion industry’s success and ability to grow. The Intellectual Property regime not only provides protection but also means for the expansion of business to established and new designers on the global stage by providing them with commercializing tools such as licensing, franchising, agreements, etc. The risk of infringement weighs heavily on emerging fashion stars and designer clothing corporations. Unless the IP assets are effectively monitored, the T&A industry's creativity and intellectual capital will continue to dwindle under the constant danger of Intellectual Property theft.
