Fashion and Accesories Law

7/28/2019 Fashion and Accesories Law

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Fashion Industry and Intellectual

Property Rights

Presented by

Poorvi Chothani, Esq.LawQuest, Mumbai

www.lawquestinternational.com


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Copyright 2008 LawQuest.All rights reserved.

http://www.ritukumar.com/

The Burgeoning Fashion Industry in India


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Issues Facing the Fashion Industry

IP Development

IP Ownership

IP Protection

IP Management

IP Valuation

IP Dilution Fragmented Marketing Initiatives

Data Protection

Lack of enforcement of contracts

http://www.suhanipittie.com


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The Fashion Industry

Developments In The Fashion Industry

Technological Advancements

Increased Competition

Advancement In IP More Choices For The

Consumers

Sustainable Development

Changes In R & D Strategies

Protection Of Rights In Innovative Procedures,Research And Goals Achieved

Move From Physical Assets To IntangibleAssets

Changes In Legislation



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IPRs - An Exclusive, Time Bound,

Right Over A Creation

IP rights for the Fashion Industry

Designs Copyrights

Trade Marks

Patents

Domain Names

http://news.sawf.org/Bollywood/27828.aspx


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Some Elements that Require

Protection in the Fashion Industry

Designs

Fabrics

Garments

Accessories

Technology

Embellishments Traditional Arts

http://www.ditto.com



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IPR and The Fashion Industry

How To Protect Your Brand What Makes A Good Trade Mark

What Can A Brand Consist Of

Selective Patent Protection

How Long Does IP Protection Last

How To Protect The Design Of Goods

The Difference Between RegisteredAnd Unregistered Designs

The Benefits Of Registered DesignProtection

http://www.wendellrodricks.com/fashion.htm
http://tanishq.co.in/index.htmlhttp://tanishq.co.in/index.html


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International Treaties

India is a member or signatory of several international IPRrelated organisations and conventions:

World Trade Organization (WTO)TRIPS

Word Intellectual Property Organisation (WIPO)

Paris Convention for the protection of IndustrialProperty

Patent Co-operation Treaty (PCT)

Budapest Treaty

Singapore Treaty on the Law of Trademarks

Madrid Protocol on Trademarks


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The World Trade Organization (WTO)

The Trade Related Aspects of Intellectual Property Rights (TRIPS)Agreement

All Signatory countries need to ensure Intellectual Property Rights (IPR)Protection within their jurisdiction.

Intellectual Property


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Intellectual Property Rights (IPR)

Intellectual property is classified into-

Patents

Industrial Designs Trade Marks

Copyright

Geographical Indications

Layout Designs of Integrated Circuits

Protection of Undisclosed Information or Trade Secrets

http://www.gili.com/


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Relevant Indian Laws*

The Patents Act, 1970

The Copyright Act, 1957

The Trademark Act, 1999

The Designs Act, 2000

The Geographical Indications of Goods(Registration & Protection) Act, 1999

*As amended from time to time and with their supporting

rules.

http://www.bridgew.us/library/ipr/index.cfm


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The intellectual property rights like logos, names and labels are

perotected by Trademark Law

Protection of Logos
http://tanishq.co.in/index.html


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Trademarks

A Trademark is a means of identification ofgoods or services, a symbol which anorganisation or person wises the consumer to

identify with its goods or services as opposed tothat of the competitor

Registration of Trademarks is governed by TheTrademarks Act, 1999

Protects logos and brand names, and may alsoapply to a distinctive way of stitching, pattern,trade dress, etc.

T

http://www.indiatrademarks.org/


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Trademarks and Service Marks

A Trademark` May Consist Of One or a Combination of the following:

A Stylized Word

Invented Word or Logo

Signature

Device

Letter

Numeral, Brand, Heading, Label

Name Written In A Particular Style

The Shape Of Goods Other Than Those For Which A Mark Is ProposedTo Be Used, Or Any Combination Thereof

Trade Dress the 1999 amendment protects shape of goods andcombination of colour

Service marks that are used by their owners to identify services

The Trademark to be registered should not be deceptively similar to an existingmark of another person and not be expressly prohibited under the Act.

T

http://www.gili.com/


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A Trademarks Criteria for Registration

Should Be

Distinctive,

Capable Of Graphical Representation,

Capable Of Distinguishing The Goods Or ServicesAs Originating From A Particular Source FromThat Of Other Similar Goods And That Mark

Should Not Be Functional In Nature


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Duration of a Trademark

Valid for ten years

May be renewed for further period often years

Failure to use a registered trademarkfor a continuous period of five years

may result in cancellation

T

http://www.ditto.com/


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Infringement

The owner has the right to sue in the courts oflaw for infringement of the trade mark

T


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Evidence of Trademark Registration

SEAL

Pepsi and Coke

T

http://inventors.about.com/library/inventors/blpepsi.htmhttp://inventors.about.com/library/inventors/blcocacola.htmhttp://www.abc.net.au/science/news/stories/s1610919.htmhttp://inventors.about.com/library/inventors/blcocacola.htmhttp://inventors.about.com/library/inventors/blpepsi.htm


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Trademarks and the Internet

Domain NamesImportance Of Maintaining Similarity

Global Impact Of Trademarks

Domain Name DisputesClaimants Reliance On TrademarkOwnership

Misdirection Of Search Engines

Dilution Of Famous MarksMalafide Use, Parody And Commentary

Trademark Infringement And/Or Passing Off (Misrepresentation) InMultiple Jurisdictions


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Copyright Subsists In

Copyright is an exclusive right granted to the author of anoriginal work for a limited period of time with the right toexploit that right.

Artistic Works

Original Literary

Computer Software

Dramatic Work

Musical Works

Cinematographic Films

Photographs

Sound Recordings etc.

C


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Copyright

Protection for designs, original artistic

works such as sketches and patterns

Does not protect ideas, information, styles,

techniques and names

Copyright law does not protect the "reverseengineering" of a garment or designs

created independently


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Copyright Notice

Copyright 2008 LawQuest. All rightsreserved.

or

2008 LawQuest. All rights reserved.

This copyright notice must be placed insuch way as to give reasonable notice ofthe claim to copyright.

C

http://www.coroflot.com/public/individual_file.asp?from_url=true&sort_by=1&portfolio_id=591469&individual_id=76339
http://www.coroflot.com/public/individual_file.asp?from_url=true&sort_by=1&portfolio_id=591469&individual_id=76339http://www.coroflot.com/public/individual_file.asp?from_url=true&sort_by=1&portfolio_id=591469&individual_id=76339


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Bundle of RightsCopyright gives the author of a literary,

dramatic or musical work, the right to:

Reproduce the work in any material formincluding the storing of it in any medium byelectronic means

Issue and Distribute Copies

Perform the work or Communicate the work

Make Films or Sound Recordings

Make Translations and/or Adaptations and

all the above rights for such adaptations Publicly Display the Work

Transfer any of these rights, either as abundle or individually to another party

C

http://www.suhanipittie.com


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Duration of Copyrights

Literary and Artistic Works: 60 years from the deathof the author

(Calculated from the calendar year following the yearof death)

Copyright is subject to certain limitations

Statutory Licensing

Fair Use Exceptions Compulsory Licensing

C


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Infringement and Plagiarism

Use of Copyrighted Material Without a License orRight or in Contravention of the License

Injunctive Relief

May be eligible for damages

PenaltyImprisonment of 7 days to 3 yearsFines from Rs. 50,000/- to 2,00,000/

C


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Designs under the Designs Act


New or original, not previously published or used in any

country

Relate to features of shape

Configuration, pattern or ornamentation applied or

applicable to an article Features should appeal to and should be judged solely

by the eye

Design must appear and should be visible on the

finished article, for which it is meant

Should not include any Trademark orproperty mark orartistic works as defined under the Copyright Act, 1957

D


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Designs

Design is a visual appearance of a particularproduct

Grants a right to sell, use and assign the design formanufacturing

Design must be distinctive, new and easilyidentifiable

Design must not be used, published or

disseminated in any way prior to DesignRegistration

http://www.titanworld.com/titan/stores/Watches/tanishq.asp


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Advantage of Designs Rights

Gives the owner an exclusive right againstunauthorised copying or imitation of thedesign by third parties

Protecting industrial designs helpseconomic development, by encouragingcreativity in the industrial andmanufacturing sectors, as well as intraditional arts and crafts

D

http://www.fashionclub.com/career-studio/sketchbook/articles/sept-2005/virtual-fashion-student.shtm

Season Hall


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Designs Ineligible for Protections Designs of industrial plans, layouts and

installations are not registrable under the Act

Painting, sculptures and the like which are notproduced in bulk by any industrial process

Stamps, labels, tokens, cards

An artistic work as defined under the Copyright Act,1957

"Artistic works" means: -

A painting, a sculpture, a drawing (including adiagram, map, chart or plan) on engraving or aphotograph, whether or not such work possessesartistic quality. An work of architecture and anyother work of artistic craftsmanship.

D

http://www.fashionclub.com/career-studio/sketchbook/articles/sept-2005/virtual-fashion-

student.shtmAlbert Ng
http://www.fashionclub.com/career-studio/sketchbook/articles/sept-2005/virtual-fashion-student.shtmhttp://www.fashionclub.com/career-studio/sketchbook/articles/sept-2005/virtual-fashion-student.shtmhttp://www.fashionclub.com/career-studio/sketchbook/articles/sept-2005/virtual-fashion-student.shtmhttp://www.fashionclub.com/career-studio/sketchbook/articles/sept-2005/virtual-fashion-student.shtmhttp://www.fashionclub.com/career-studio/sketchbook/articles/sept-2005/virtual-fashion-student.shtmhttp://www.fashionclub.com/career-studio/sketchbook/articles/sept-2005/virtual-fashion-student.shtmhttp://www.fashionclub.com/career-studio/sketchbook/articles/sept-2005/virtual-fashion-student.shtmhttp://www.fashionclub.com/career-studio/sketchbook/articles/sept-2005/virtual-fashion-student.shtmhttp://www.fashionclub.com/career-studio/sketchbook/articles/sept-2005/virtual-fashion-student.shtmhttp://www.fashionclub.com/career-studio/sketchbook/articles/sept-2005/virtual-fashion-student.shtmhttp://www.fashionclub.com/career-studio/sketchbook/articles/sept-2005/virtual-fashion-student.shtm


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Duration

Initially ten years from the date of

registration, or ten years from thepriority date

May be extended by a further period

of 5 years

D

http://www.fashionclub.com/career-studio/sketchbook/articles/sept-2005/virtual-fashion-student.shtm

Elias Luna


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Piracy, Infringement and

Punishment

Piracy of a design means the application of a design or its imitation to any articlebelonging to class of articles in which the design has been registered for thecommercial purpose without the written consent of the registered proprietor

In case of infringement, the person is liable for every offence to pay a sum notexceeding Rs. 25,000/- to the registered proprietor subject to a maximum of Rs.50,000/- recoverable as contract debt in respect of any one design

The registered proprietor may bring a suit for the recovery of the damages for anysuch contravention and for injunction against repetition of the same

Total sum recoverable shall not exceed Rs. 50,000/- as contract debt, as stated in

Section 22(2)(a). The suit for infringement, recovery of damage etc. should not befiled in any court below the court of District Judge.

D


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Infringement and Plagiarism

Unauthorized commercial use ofa registered design orits imitation to any article for the commercial

purpose

May be eligible for damages

Penalty or Contractual Damages- Rs. 25,000/- to Rs.50,000/

C


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Copyright and Designs Overlap

Copyright

Vs.

Design Protection

http://www.seasonsindia.com/


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Patent Protection

Protects inventions

Aninvention means a new product orprocess involvingan inventive step and capable ofindustrial application

(S. 2(1)(j))

Granted to Innovative, Novel Products and Processes

Designers may be able to patent new, inventive anduseful devices.Artistic creations cannot be patented andtherefore patents are not widely adopted by designersfrom fashion industry.

Inventions by Buck Weimer and CSIRO which controlodours and body temperature respectively in garmentshave been successfully patented in the US

http://www.colorjewels.com/
http://www.colorjewels.com/http://www.colorjewels.com/


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Exclusive Rights of a Patentee

Monopolistic Right to exploit the patent

Ability to prevent others from using or exploiting the

patent

Exclude others from using or exploiting the patent


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Patented Diamond Setting - USPTO

U.S. Patent Mar 20, 2007

US D538,700 S


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Patented Handbag Designs - USPTO

US Patent

Apr. 27, 2004 US D 488,925 S


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Patents and Fashion Industry

Patent law has limited usage in the fashion designs, because:

The patent standard of novelty cannot be met by mostdesigns

Patent application process is very slowly to be meaningful for

most fashion designs


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Infringement and Penalties

Give Notice To Infringing Party

A Suit May Be Filed In An Appropriate District Court

Falsification of Registration Entries - imprisonment up to 2 yearsor with fine or with both. (Amount of the fine is not specified).

Deals with unauthorized claim of patent rights punishable withpunishable with fine that may extend to Rs.1,00,000/-.

P


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Geographical Indications of Goods

(Registration & Protection) Act, 1999

A Geographical Indication is a public property belonging

to the producers of the concerned goods. It shall not be

subject matter of assignment, transmission, licensing,pledge, mortgage or such other agreement

Validity10 years and can be renewed


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Examples of GI Protection and Fashion

Pochampally Ikkat (Andhra Pradesh)

Patola of Patan (Gujarat)

Kolhapuri Chappals (Maharashtra)


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Contracts and Fashion

IP Licensing Agreements

Distributor Agreements

Photographs and Agreements

Modeling agreements

Work for Hire

Non-disclosure and non-compete contracts withemployees


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Going Forward

Creativity Is Key To Success In ThisIndustry

It Is Essential To Protect And To EnforceCreativity and Ensuing IntellectualProperty Rights

Necessary To Increase Awareness OfRights and Penalties for Infringement
http://www.tanishq-jodhaa-akbar.com/ja_ornaments_zoom1.asp


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LawQuests Practice Areas

522 Maker Chambers V221 Nariman Point

Tel: +91 22 6615 6555,Website: www.lawquestinternational.com

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Trademark, Copyright RegistrationDesign and Patent Registration

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