Combating Counterfeiting In Indian Fashion - Legal And Economic Perspectives
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Category: General Law
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COMBATING COUNTERFEITING IN INDIAN FASHION:
LEGAL AND ECONOMIC PERSPECTIVES
Pranaya Gopinath, Christ University, Bangalore
ABSTRACT
In this paper it would explore the topic of intellectual property law with regard to protecting the myriad of creations under the garment industry comprehensively, as they include artistic works, designs, brand names, and logos. Creativity is the basis for the fashion industry, as it relies on designers' concepts and innovations. Despite this centrality, international protection of fashion brands, designs, and articles is patchy and uneven; as a result, the system frequently leaves gaping holes for designers' rights to fall through. Labels and branding in the fashion industry have an intangible value. They carry both economic and reputational importance.
Such an investmentwhether for quality and status, in the case of the consumer, or for recognition and appreciation, in the case of the designer-is protected by IP law to safeguard all elements involved and preserve the value of individual creativity while spurring further innovations in an extremely competitive environment. This research paper identifies deep challenges that counterfeiting and piracy pose to designers regarding their originality and, consequently, the economic viability of their brands. Conducted against the backdrop of the prevailing IP frameworks, the study develops strategies that could, in themselves, provide better protection to ensure that established designers or even new ones may easily protect their works, secure their brand identities, and maintain their competitive positioning in a global market.
Keywords: Fashion Industry, Piracy, Counterfeiting, Intellectual Property, Economic Viability.
INTRODUCTION
The very fashionable industry of today is dynamic and constantly changing, with trends that are the outgrowth of events like economics, politics, climate, and significant current events that can include a pandemic, like COVID-19. Trends are developed informally through processes of copying, referencing, reworking, and widespread communication between key retailers and media. Trends are born on the catwalks of fashion, accepted by style influencers, becoming extremely popular among the consumer public, fashionable, to reach which point they attain their peak, then decline and become old. The fashion business is the production, design, and consumption of apparel and accessories. As from the data collected in the year 2022, it stands at . 7 trillion globally. In the United States alone, the industry stands at a value of approximately $343. 70 billion.
The fashion industry employs over 430 million individuals worldwide in jobs involving manufacturing and production of fashion accessories, shoes, clothes, and textiles. This accounts for approximately 12. 6% of the world's workforce. 1With consumers purchasing over eighty billion new items of clothing each year, the scale of production and consumption in the fashion industry underscores its immense economic significance. The fashion industry's success, however, is not solely measured by the creativity of individual designers or the originality of new trends; instead, it is largely driven by monetary gains across all stakeholders, from manufacturers to retailers. Surprisingly, this phenomenon was a result of the overall proliferation of "copycat culture," which has been very instrumental in its success.
Such imitation of designs- whether through knockoffs, fast fashion, or counterfeits-has been an extremely significant contributor toward the growth and access of fashion trends among a larger consumer base. While imitation of this kind remains rather controversial, it paved the way for the rapid growth of industry effectively creating an emergent border between exclusivity and accessibility. This paper probes, within the fashion industry, the intricate interplay between originality and imitation, and how that interplay differentiates the way such relationships develop consumer behavior, market growth, and economic outcomes. Counterfeiting within the fashion industry is classified into two categories: deceptive and nondeceptive counterfeiting. Deceptive counterfeiting occurs when consumers are unaware, that
1 https://kadence.com/en-us/tag/fashion/
they are purchasing unauthorized, fake goods, believing them to be original branded items. Non-deceptive counterfeiting is for consumers willingly purchasing counterfeits in which the customers are aware of their non-authenticity through packaging, price, and points of sale, as well as materials used in production. Fast fashion is defined as a rapid production of fashionable clothing, low in cost, drawing inspiration from the runway or celebrity culture and subsequently transforming these ideas into a sold garment at low prices. The idea is that this quick turnaround was supposed to fulfill the demands of the consumers whereby they would get the latest styles and trends within weeks of its design on a new runway by a designer. The cycle of the process from innovation to mass production has therefore hugely contracted.
The changed face of the fashion world is that it allows consumers to be able to get new styles more frequently, and this has resulted in the continuous changeover of new collections in stores. Largely, the increase in fast fashion hinges on the influence of social media platforms, including Instagram and TikTok. Influencers play a key role in promoting fast fashion by generating daily content showcasing their latest purchases—commonly referred to as “hauls”—alongside tryons and sponsored endorsements.
This content not only generates hype around the latest trends but also influences consumer behaviour by making fast fashion more accessible and desirable Other retailers such as Shein, Fashion Nova, Zaful, Boohoo, Zara, and even Amazon jumped into the fray by churning out and distributing clothing with a superficial high-fashion look at only a small fraction of that price, affecting many people with stylish options at an affordable price point. 2 Fast fashion has an impact on various levels of industry. Economically, it has made fashion more accessible to the modern world and democratized trends that were once only available to the high-end consumer. The fast fashion brands can offer the most up-to-date looks at lower costs, thus creating a thriving sector in which clothing is available to more people than ever before.
Social media influencers, with their vast reach and aspirational content, serve as access points to the industry for consumers, further erasing the distinction between marketing and personal recommendation. 2 India Brown, The Promotion of Fast Fashion from Influencers is Problematic and Unsustainable, DAILY UTAH CHRON. (September 18, 2024), https://dailyutahchronicle. com/2024/10/10 /the-promotion-of-fast-fashion-frominfluencers-is-problematic-and-unsustainable/ [https://perma . cc/9NJ7-G53M].
DISCUSSION
I.
INTELLECTUAL
PROPERTY FRAMEWORK IN DEVELOPING ECONOMIES The fashion industry is deeply rooted in creativity and innovation, with intellectual property (IP) serving as a crucial mechanism for protecting the originality of designs, brands, and artistic expressions. However, the effectiveness of IP protection in the global fashion sector remains inconsistent, creating vulnerabilities that are exploited by counterfeiting and piracy. Counterfeit goods not only undermine the economic viability of legitimate fashion brands but also compromise their reputation and intellectual capital. Despite the availability of legal frameworks and IP laws, the fashion industry struggles to combat the rapid rise of fast fashion and counterfeit products, which are fueled by global supply chains, digital platforms, and social media influence.
Existing literature highlights the deficiencies in current intellectual property protections, particularly in developing economies like India, where counterfeiting of luxury and mass-market brands thrives. This situation raises crucial questions about the adequacy of IP law in safeguarding fashion innovations and preventing the erosion of brand value through illegal imitation. The problem lies in the insufficiency of both legal and technological measures to address the counterfeit epidemic, which hampers the economic and creative growth of fashion businesses. There is a need to explore more robust, unified global strategies for IP protection, addressing the gaps in enforcement, consumer awareness, and industry collaboration.
This study seeks to investigate the limitations of current IP frameworks and to propose improved measures for protecting fashion designs, brands, and products in a complex and increasingly digitalized global market. When comparing the various sources, it is evident that counterfeiting is a global issue, and the challenges and solutions vary significantly across different contexts. The widespread economic damage caused by counterfeiting and piracy calls for international collaboration to strengthen enforcement3. 3 Bharadwaj V and Fairhurst A,’ Fast Fashion: Response to Changes in the Fashion industry’, (2010) The International Review of Retail, Distribution and Consumer Research Global nature does not delve deeply into legal and cultural challenges faced by individual countries like India.
Influencing the consumers, catering to the different strata of the market which includes different economic spheres available from local markets to high street designers. II.
LEGAL PROTECTION UNDER INDIAN LAW
Unique creators, such as designers, design houses, and even brands, are entitled to the protection of their works and fashion designs under the Indian Legislation:
1. The Indian Copyright Act, 1957
2. The Designs Act, 2000
3. The Trademarks Act, 1999
4. The Patents Act, 1972
a) The Indian Copyright Act, 1957 "Copyright" is the legal right of ownership to intellectual property with exclusive control by the original creator and those to whom he has granted permission to recreate and produce the work. 4 In simple terms, it only guarantees that only the author of the work may create a copy or let someone else create a copy of the work. Therefore, these types of protection cover artistic, literary, and even musical works. In the fashion world, copyrighting acts to protect a designer's artistic creation. The Act of Copyright, 1957 defines a work of art in section 2(c)5 as including paintings, sculptures, sketches, drawings, and other works of similar nature. As such, the definition is broad to include diverse aspects that can depict an artistic expression even though not wholly visual.
It is prudent to note that registration is not a condition for copyright protection; designers are protected
4 https://www.investopedia.com/terms/c/copyright.asp
5 The Copyright Act, 1957 (Act 14 of 1957).
automatically at the time of creation of a work. Section 22 of the Copyright Act, 1957 provided for the length of copyright protection for the life of the author plus 60 years from the date of his death. The duration of copyright in anonymous, pseudonymous, and joint works is for 60 years from the date of publication. This longer period of protection enables the fashion designer to retain control over his work and to even enjoy it after many years have passed since its creation. As a matter of fact, it is one of the very few industries where the creativity of an artist is largely rewarded, and that creativity brings both fame and profit. Copyright provides protection for designers' intellectual property and encourages further innovation and creativity.
b) The Designs Act, 2000 A design describes the appearance of a product, and central to the fashion industry, their protection is an absolute necessity. The nature of a business in such an industry is dependent much on aesthetics; therefore, design protection is strongly needed. The Design Act, of 2000 grants legal protection to designs that are novel and original, thus conferring exclusivity to their authors. Yet, a design cannot be similar or identical to any prior designs manufactured or designed. Thus, only truly distinctive novel visual features are protected. Under Section 2 (d), Design Act, 20006, a design is said to mean features of shape, configuration, pattern ornamentation or composition of lines or colors or combinations thereof applied to any article in two-dimensional or three-dimensional forms by any industrial process or means.
Therefore, the design is judged on aesthetic quality alone and does not embrace material or function, or constructional principles. The protection in this case is confined to the product's mere appearance and not physical or functional properties. A registered design is the only design that is protected under the Act, and the registered holder enjoys exclusive rights against counterfeiting or knock-off designs. Be it aesthetic or ornamental or two-dimensional features, such as in textile prints, or a three-dimensional feature, such as a handbag or garment7, registration, therefore, protects the design legally. In
6 The Designs Act, 2000 (Act 16 of 2000), s.22.
7 Department of Trade and Industry, Republic of South Africa, “Looking Good
An Introduction to Aesthetic Designs for Small and Medium-sized Enterprises”, addition, three-dimensional designs can be protected under industrial models by simply registering it, while printed fabric designs can also benefit under industrial design. A registered design shall be protected for a period of 10 years and can be extended by another
5 years for creators, designers, and other fashion makers to use their original work for some
time. This protection remains of utmost importance in protecting designs from improper use and originality within the fashion industry. c) The Trademarks Act, 1999 Any "mark" that is graphically capable and may distinguish one person's goods or services from those of others, may be defined under section 2(b), Trademark Act, 1999. This includes the shapes of goods and color combinations as well as product packaging. A trademark essentially guards names, designs, symbols, terms, or color schemes that are used to identify and differentiate products in a business context. For example, the "Christian Dior CD" trademark and logo distinguish the products of Dior in the form of bags and accessories from other of haute fashion brands.
Trademarks are important to ensure not only the protection of the identity and prestige of a brand but also that of the following people: Consumers: If they do their part, they can identify original products easily. Trademark owners will be able to protect their brand identity and prevent misuse. Market Competitors: This is created by fair competition by the safeguarding of original brand marks from infringement. d) The Patents Act, 1972 Patents are issued to safeguard innovative inventions and are of the utmost importance to protect technological development. A patent grants exclusive rights of the invention to the inventor for a term of 20 years from the date of filing, wherein he or she has the right to make, use, and sell this invention during these years. By granting inventors exclusive rights, patents inspire the innovation of new technologies.
While the apparel industry is based on creativity and innovation, patents hardly go well with aesthetic designs. This is simply because artistic concepts cannot be patented. Patents are applied to fashion product-related technologies or processes. For example, some new manufacturing techniques or innovations in fabric can be patented, giving the designer or the inventor legal rights to their invention. Patents would give designers an edge as these could be used to protect innovative processes or technologies connected to producing garments and accessories so that a competitor cannot replicate one's methods. In a way, although artistic creations have their protection under other branches of intellectual property rights, patents protect such technological innovations in the apparel industry. III.
NAVIGATING THROUGH THE INDUSTRIAL DILEMMA
The glamorous fashion business has been threatened by several issues, including the proliferation of "fast fashion," the manufacture of knockoffs, copying, imitation, and piracy of designs, and the counterfeiting of goods. These challenges gave rise to the idea of the "piracy paradox. " Piracy is usually referred to as the unauthorized and illegal copying or distribution of material that falls under intellectual property law. There are two main types of copyrights: counterfeits and knockoffs. A counterfeit is a product forged, reproduced, or duplicated in an illegal way for the intention of deceiving or misleading, passing off the item as authentic. Goods made by Louis Vuitton are frequently faked and offered for sale in large quantities by numerous sellers. For example, Louis Vuitton Malletier v. Eisenhauer Road Flea Market Inc8.
saw the unapproved sale of Louis Vuitton items on the landlord's property, right in front of him. The degree of innovation in fashion design is comparatively lesser than in other conventional inventions because even small changes like chopping off a skirt's length, adding sleeves to a shirt, or using a different pattern on the same garment can be considered original fashion design. 9 Consequently, overprotection will minimize creativity further. Piracy may infringe on personal designers but eventually, it favors and promotes the industry.
8 SA 11-CV-00124-HLH (W.D. Tex. Jan 2012)
9 Li, ‘IP Protection of Fashion Design
To Be or Not to Be, That is the Question’, (2012) 3 IP IV.
PROTECTION JUSTIFIED IN THE EYES OF SOCIAL JUSTICE
Fashion designers can use intellectual property law as a lever in protecting their creativity and originality by utilizing it to lawfully restrain unauthorized productions of their designs. Because of this, the law recognizes that value from a financial perspective exists but equally that for culture and psychology, fashion holds its place. As Justice D. Thompson famously declared, "the law is a subject related to fashion", suggesting that not only does law change with developments in society but also that, once again, it mirrors the dominating views about matters like identity, autonomy, and expression. 10 One famous instance is the Yves Saint Laurent v. Louis Dreyfus Suit11, in which Stefano Pilati of YSL created a lady's tuxedo known as "Le Smoking," which went on to become a wellknown representation of feminism and female empowerment.
The design contradicted established gender stereotypes by claiming that women may wear clothing that is usually associated with men. The fact that Ralph Lauren later copied this design and filed a lawsuit in response highlights the importance of intellectual property law in preserving not only fashion designs but also the more subtly cultural ideas they represent. V.
THE VICIOUS CYCLE: INNOVATION VS. IMITATION
The cycle of creation, copying, and adaptation is one feature of the fashion industry. Although this might inspire continued creativeness, it tends to deprive designers of financial revenues and intangible properties. Fast fashion, alongside counterfeit products, creates a dilemma in that, although copying trends fuels the growth and establishment of the industry overall, it jeopardizes fashion designers' creativity and long-term financial sustainability. The tension between originality and copying remains one of the reasons for stronger intellectual property protection systems. In the vacuum of such safeguards, designers may be unable to retain command over their works and, in turn, may be hurt by exactly what is powerfully propelling the sector ahead-that is, creativity.12 It remains one of the biggest challenges facing
10 Seymour D. Thompson, Fashion in Law, (1899) 11 Green Bag 487
11Societe Yves Saint Laurent Couture S.A. et al v Societe Louis Dreyfus Retail Management S.A et al, Judgement of the tribunal de Commerce de Paris, E.C.C 512 (1994)
12 Pranjal Shirwaikar, ‘Fashion Copying and Design of the Law’, (2009) 14 Journal of IPR
the fashion industry: to balance these forces and protect creators against the corrosive influence of copying at the same time as encouraging ingenuity. Intellectual property regulations are essential in guaranteeing that the producers of original ideas receive compensation for their artistic efforts, especially considering the significant risks associated with the fashion design process. Many designers encounter difficulties in upholding their legal rights. This leads to an "industrial dilemma" wherein designers must thrive within a framework that both encourages innovation and exposes it to exploitation.
CONCLUSION
Counterfeiting is one such major global menace that affects not only the economy but also consumers' safety, especially when a consumer is not sure whether the product, he or she purchases is real or fake. Though brand manufacturers and law enforcement join hands and establish collaborative efforts, the brand-new counterfeits keep on spreading, and such counterfeit goods, respectively, hurt the original brands from all industries, including the fashion sector of India. The one, to be particular, is against Skechers and Nike. The parallel black market, infested with knockoffs and cheap imitations, has nearly reached the same magnitude as the legitimate fashion industry. This very rampant duplication thus ties up the innovation hands, devalues original designs, and endangers designers' livelihoods.
Intellectual Property rights are a bit of that tool in the quest to solve these problems-advanced protection for the interests of designers, design houses, and brands against the damages caused by counterfeits, unauthorized duplication, and misuse of their creative works. This paper analyzed the role of IP laws, especially the design, patent, and copyright protections, in protecting stakeholders in the fashion industry from such infringements. In this case, a comparison of India's intellectual property regime to that of the West puts across the dissimilarity of the different sorts of procedural protections available in the respective jurisdictions. The scope and protection applied differ, but the aim is the same: to protect the creativity and innovation of fashion designers from the destructive impacts of counterfeiting and piracy.