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IPRs
 IN THE TEXTILE &
APPARELS SECTOR
DESIGN RIGHTS HAVE AN
IMPORTANT   ROLE   TO
PLAY IN THE FASHION
INDUSTRY
POSSIBLE REASONS WHY IPRs ARE
THOUGHT TO BE NOT APPLICABLE
TO THE FASHION INDUSTRY?
• The nature of fashion design necessarily attracts
  imitation – “fashion following”

• The transitory/seasonal nature of the fashion
  industry & markets

• The fear that protection may paralyse the
  fashion industry by creating monopolies
Why is it important for the fashion
     community to think of design
                protection?

• Design protection is as applicable to the fashion
  industry as in any other business segment

• In the fashion industry, it is the appearance of
  the product that is one of the most crucial
  determining factors in consumer choice

• A unique & innovative design can thus be the
  USP and the linchpin for your business
IPRs & the fashion industry
• If China’s strength lies in volumes, India’s lies in
  value addition

• The recognition of the role of the DESIGNER &
  the immense value of the INTANGIBLE that
  they create

• International experience shows that protection
  stimulates rather than stunt the fashion industry
  – eg., France
IPRs & the fashion industry
• Design rights & IPRs in general, recognise
  & harness individual creativity & help
  PROFIT from it

• Understanding the boundaries of design
  protection also helps in not infringing
  other’s rights
“DESIGNS”




                   Purely            Designs with
Functional /
               artistic works   eye-appeal & capable of
utilitarian                       Industrial application


 Patents         Copyright              Designs
Act, 1970        Act, 1957              Act, 2000
A  “DESIGN”    UNDER                                      THE
DESIGNS ACT, 2000
• 2D or 3D features of shape, configuration,              pattern,
  ornament, composition of lines, colours

• Applied to any article by any industrial process or means

• The finished article appeals to the eye

• Does not include anything which is in substance a mere mechanical
  device


• Not an artistic work or trademark
DESIGNS CAN BE 2D OR 3D OR
  COMBINATION OF BOTH

• Surface pattern (2D)



• Cut of the garment
  (3D)
DESIGNS EXCLUDED FROM
            PROTECTION
• Not NEW or ORIGINAL

• If the design has been disclosed to the public
  in India or elsewhere (exception is provided for
  exhibitions)

• Not significantly distinguishable from known
  designs or a combination of known designs
“NEW OR ORIGINAL”
• “Original”: Means that it must originate from the
  creator

• “New”: May involve a design which is known but
  is applied for the first time to that article

• But over the years, the test has become NEW
  AND ORIGINAL
THE DEGREE OF NOVELTY REQUIRED

• “New or original” does not simply mean
  different

• A trade variant of an old design does not
  make it novel

• Substantial novelty required
“TRADE VARIANTS”
• “It cannot be said that there is a new
  design every time a coat or waistcoat is
  made with a different slope or different
  number of buttons…to hold that would be
  to paralyse industry” - Le May v. Welch

• Thus, trifling variations/immaterial details
  would not be considered “NEW”
WHAT IS “NOVELTY”

• Strikingly different appearance

• Pattern made up of old features but
  resulting combination with strikingly
  different appearance can be novel
Example of “Novelty”
• Wallpaper
  Manufacturers
  Limited case

• Wallpaper     pattern
  held to be a new and
  original combination
  of known designs
Requirement of “non-disclosure”

• Prior to application, one should be careful
  not to launch the design into the market

• The Design, prior to the filing of the
  application    should    be treated as
  confidential information
WHAT IF YOUR DESIGN IS
     ALSO FUNCTIONAL?
• The intent of the Designs Act is to protect
  shapes & not functions

• But, there may be a design which also has
  functional features

• Test is to see if design is solely dictated by
  function. If yes, it will not be registrable
WHY REGISTER YOUR DESIGN? –
        DESIGNS ACT, 2000
• Statutory right – accrues only on registration -
  territorial

• Right to prevent all other from producing, importing,
  selling or distributing products having an identical
  appearance or a fraudulent or obvious imitation

• Monopoly Period of 10 years extendable by 5

• Gives you a Unique Selling Point (USP)

• Is an asset & can be licensed
CLASSIFICATION ACCORDING TO GOODS

  • Registration is in relation to goods

  • 32 classes

  • Protection confined to class for which registered

  • More than one design may be registered as a set
    of articles of same character
WHO CAN APPLY FOR A
     DESIGN REGISTRATION?
• If design has been specially commissioned
  for good consideration, the person for
  whom it is executed

• An assignee or exclusive licensee

• In any other case, the AUTHOR
Importance of getting clarity on
  ownership of the “DESIGN”
• In the context of joint design efforts, who owns
  the design should be spelt out in the contract

• Also, where a part of the design process is
  sourced out, it should be spelt out

• While designing for someone else, be clear in
  the contract on who owns the design
THE OVERLAP BETWEEN COPYRIGHT &
DESIGN LAWS

  • Purely artistic works, for example, paintings
    and sketches are protected under the
    Copyright Act

  • The design development process involves the
    development of a number of artistic works –
    can copyright protection be claimed over
    them?
THE DESIGN DEVELOPMENT PROCESS

• For example, TEXTILES:

Sketches      Engineered templates
Film tracing      Screens
Engraving/printing      Fabrication

• Each on of the above can qualify as “artistic
  works” under the Copyright Act, 1957
COPYRIGHT & DESIGN LAWS
• A distinction has thus sought to be drawn
  between “purely artistic works” and works
  which are commercialised by industrial
  application

• The rationale is that when artistic works are
  commercialised, they do not deserve the
  protection granted under the Copyright Act and
  come within purview of the Designs Act
“Artistic work” – Overlap of Rights?
• Copyright     does    not
  subsist     in     design
  registered    under   the
  Designs Act

• Design capable of being
  registered, but which has
  not been so registered -
  copyright shall cease as
  soon as any article to
  which the design has
  been applied more than
  fifty   times    by    an
  industrial process
Copyright & Designs Law
• However, it may not be practically possible for a
  designer to get all his designs registered. Also,
  all designs may not be “capable of registration”
  under the Designs Act

• It may be argued that a design may be capable
  of protection under Copyright Act on the basis of
  the underlying artistic works (i.e., the sketches,
  engravings, prototypes, etc.) though Section 15
  (2) remains a bar
Copyright & Designs Law
• It is therefore important to maintain
  documentation and records at every
  stage of product design and development
  as this may help in claiming protection
  for a design under the Copyright Act,
  1957
DESIGN Vs. COPYRIGHT
     DESIGN                 COPYRIGHT
Complete monopoly       Only protects against
                              copying
Need to register to      Subsists inherently
 claim protection
Has to be “NEW”           No requirement for
                                novelty
Maximum 15 years       Life of author + 50 years

 Only in respect of      Is not goods specific
goods registered for
DESIGN AS A TRADEMARK
• The     “Epi”   style
  leather design of
  Louis         Vuitton
  Malletier

• Protected   as    a
  trademark   against
  piracy by the Delhi
  High Court
Licensing of a Design
• The design can be licensed to third parties to
  exploit markets or commercialise it on a scale
  much bigger than what can the resources of the
  author

• Essential to specify in the license- the term,
  territory, amount of royalty & type of products
  for which design can be used by licensee
PIRACY OF REGISTERED DESIGN
• Anyone who applies or causes to be applied to
  any article the design or any fraudulent or
  obvious imitation of it

• To see whether the essential design features
  are substantially similar between the article
  and the design representation

• It is the overall general impression of similarity
  which is taken into account
Example of infringement of
       registered design
• Birkin v. Pratt



• Lace pattern was
  held to have
  been infringed
YSL v. Ralph Lauren
• YSL was awarded
  damages for Ralph
  Lauren’s
  infringement of the
  design rights in YSL’s
  design of its tuxedo
  dress
The Suneet Verma controversy –
        Lessons to be learnt
• Need to assert rights
  over your designs –
  think that you are
  creating   Intellectual
  Property from Day 1
  of product design &
  development and not
  just when your design
  gets copied
The Suneet Verma controversy –
        Lessons to be learnt
o At the same time, if
  you need to use a
  design,     do      due
  diligence over its
  ownership     –    give
  credit – take a license
  if you do need to use
  it
Things to remember
o The Design right needs to be used to support
  and leverage the enormous amount of creativity
  and potential of Indian designers – time has
  come to actively harness it – don’t just wake up
  when your design gets copied, start thinking
  about it from Day 1 of product creation and
  development

o A unique design for which you see commercial
  value and which you intend to commericalise,
  get it registered as a design
Things to remember
• Till the time you file a design application, treat it as
  confidential when you need to disclose it to
  wholesalers/exporters/in a portfolio

• Have clarity on the ownership of the designs that you
  create by entering into contracts that spell out who
  owns the designs

o Maintain documentation and records at every stage of
  product development – helps you claim copyright even
  if your design is unregistered
Things to remember
• When using designs, do your due
  diligence on the ownership of these
  designs – give credit, take licenses

• Commericalise your     design   through
  license arrangements
Things to remember
o The fashion design community should
  lobby and build pressure on legislators
  and the government to provide for an
  “unregistered design right” as exists in
  the European Union

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Ip rs in fashion industry1 [compatibility mode]

  • 1. IPRs IN THE TEXTILE & APPARELS SECTOR
  • 2. DESIGN RIGHTS HAVE AN IMPORTANT ROLE TO PLAY IN THE FASHION INDUSTRY
  • 3. POSSIBLE REASONS WHY IPRs ARE THOUGHT TO BE NOT APPLICABLE TO THE FASHION INDUSTRY? • The nature of fashion design necessarily attracts imitation – “fashion following” • The transitory/seasonal nature of the fashion industry & markets • The fear that protection may paralyse the fashion industry by creating monopolies
  • 4. Why is it important for the fashion community to think of design protection? • Design protection is as applicable to the fashion industry as in any other business segment • In the fashion industry, it is the appearance of the product that is one of the most crucial determining factors in consumer choice • A unique & innovative design can thus be the USP and the linchpin for your business
  • 5. IPRs & the fashion industry • If China’s strength lies in volumes, India’s lies in value addition • The recognition of the role of the DESIGNER & the immense value of the INTANGIBLE that they create • International experience shows that protection stimulates rather than stunt the fashion industry – eg., France
  • 6. IPRs & the fashion industry • Design rights & IPRs in general, recognise & harness individual creativity & help PROFIT from it • Understanding the boundaries of design protection also helps in not infringing other’s rights
  • 7. “DESIGNS” Purely Designs with Functional / artistic works eye-appeal & capable of utilitarian Industrial application Patents Copyright Designs Act, 1970 Act, 1957 Act, 2000
  • 8. A “DESIGN” UNDER THE DESIGNS ACT, 2000 • 2D or 3D features of shape, configuration, pattern, ornament, composition of lines, colours • Applied to any article by any industrial process or means • The finished article appeals to the eye • Does not include anything which is in substance a mere mechanical device • Not an artistic work or trademark
  • 9. DESIGNS CAN BE 2D OR 3D OR COMBINATION OF BOTH • Surface pattern (2D) • Cut of the garment (3D)
  • 10. DESIGNS EXCLUDED FROM PROTECTION • Not NEW or ORIGINAL • If the design has been disclosed to the public in India or elsewhere (exception is provided for exhibitions) • Not significantly distinguishable from known designs or a combination of known designs
  • 11. “NEW OR ORIGINAL” • “Original”: Means that it must originate from the creator • “New”: May involve a design which is known but is applied for the first time to that article • But over the years, the test has become NEW AND ORIGINAL
  • 12. THE DEGREE OF NOVELTY REQUIRED • “New or original” does not simply mean different • A trade variant of an old design does not make it novel • Substantial novelty required
  • 13. “TRADE VARIANTS” • “It cannot be said that there is a new design every time a coat or waistcoat is made with a different slope or different number of buttons…to hold that would be to paralyse industry” - Le May v. Welch • Thus, trifling variations/immaterial details would not be considered “NEW”
  • 14. WHAT IS “NOVELTY” • Strikingly different appearance • Pattern made up of old features but resulting combination with strikingly different appearance can be novel
  • 15. Example of “Novelty” • Wallpaper Manufacturers Limited case • Wallpaper pattern held to be a new and original combination of known designs
  • 16. Requirement of “non-disclosure” • Prior to application, one should be careful not to launch the design into the market • The Design, prior to the filing of the application should be treated as confidential information
  • 17. WHAT IF YOUR DESIGN IS ALSO FUNCTIONAL? • The intent of the Designs Act is to protect shapes & not functions • But, there may be a design which also has functional features • Test is to see if design is solely dictated by function. If yes, it will not be registrable
  • 18. WHY REGISTER YOUR DESIGN? – DESIGNS ACT, 2000 • Statutory right – accrues only on registration - territorial • Right to prevent all other from producing, importing, selling or distributing products having an identical appearance or a fraudulent or obvious imitation • Monopoly Period of 10 years extendable by 5 • Gives you a Unique Selling Point (USP) • Is an asset & can be licensed
  • 19. CLASSIFICATION ACCORDING TO GOODS • Registration is in relation to goods • 32 classes • Protection confined to class for which registered • More than one design may be registered as a set of articles of same character
  • 20. WHO CAN APPLY FOR A DESIGN REGISTRATION? • If design has been specially commissioned for good consideration, the person for whom it is executed • An assignee or exclusive licensee • In any other case, the AUTHOR
  • 21. Importance of getting clarity on ownership of the “DESIGN” • In the context of joint design efforts, who owns the design should be spelt out in the contract • Also, where a part of the design process is sourced out, it should be spelt out • While designing for someone else, be clear in the contract on who owns the design
  • 22. THE OVERLAP BETWEEN COPYRIGHT & DESIGN LAWS • Purely artistic works, for example, paintings and sketches are protected under the Copyright Act • The design development process involves the development of a number of artistic works – can copyright protection be claimed over them?
  • 23. THE DESIGN DEVELOPMENT PROCESS • For example, TEXTILES: Sketches Engineered templates Film tracing Screens Engraving/printing Fabrication • Each on of the above can qualify as “artistic works” under the Copyright Act, 1957
  • 24. COPYRIGHT & DESIGN LAWS • A distinction has thus sought to be drawn between “purely artistic works” and works which are commercialised by industrial application • The rationale is that when artistic works are commercialised, they do not deserve the protection granted under the Copyright Act and come within purview of the Designs Act
  • 25. “Artistic work” – Overlap of Rights? • Copyright does not subsist in design registered under the Designs Act • Design capable of being registered, but which has not been so registered - copyright shall cease as soon as any article to which the design has been applied more than fifty times by an industrial process
  • 26. Copyright & Designs Law • However, it may not be practically possible for a designer to get all his designs registered. Also, all designs may not be “capable of registration” under the Designs Act • It may be argued that a design may be capable of protection under Copyright Act on the basis of the underlying artistic works (i.e., the sketches, engravings, prototypes, etc.) though Section 15 (2) remains a bar
  • 27. Copyright & Designs Law • It is therefore important to maintain documentation and records at every stage of product design and development as this may help in claiming protection for a design under the Copyright Act, 1957
  • 28. DESIGN Vs. COPYRIGHT DESIGN COPYRIGHT Complete monopoly Only protects against copying Need to register to Subsists inherently claim protection Has to be “NEW” No requirement for novelty Maximum 15 years Life of author + 50 years Only in respect of Is not goods specific goods registered for
  • 29. DESIGN AS A TRADEMARK • The “Epi” style leather design of Louis Vuitton Malletier • Protected as a trademark against piracy by the Delhi High Court
  • 30. Licensing of a Design • The design can be licensed to third parties to exploit markets or commercialise it on a scale much bigger than what can the resources of the author • Essential to specify in the license- the term, territory, amount of royalty & type of products for which design can be used by licensee
  • 31. PIRACY OF REGISTERED DESIGN • Anyone who applies or causes to be applied to any article the design or any fraudulent or obvious imitation of it • To see whether the essential design features are substantially similar between the article and the design representation • It is the overall general impression of similarity which is taken into account
  • 32. Example of infringement of registered design • Birkin v. Pratt • Lace pattern was held to have been infringed
  • 33. YSL v. Ralph Lauren • YSL was awarded damages for Ralph Lauren’s infringement of the design rights in YSL’s design of its tuxedo dress
  • 34. The Suneet Verma controversy – Lessons to be learnt • Need to assert rights over your designs – think that you are creating Intellectual Property from Day 1 of product design & development and not just when your design gets copied
  • 35. The Suneet Verma controversy – Lessons to be learnt o At the same time, if you need to use a design, do due diligence over its ownership – give credit – take a license if you do need to use it
  • 36. Things to remember o The Design right needs to be used to support and leverage the enormous amount of creativity and potential of Indian designers – time has come to actively harness it – don’t just wake up when your design gets copied, start thinking about it from Day 1 of product creation and development o A unique design for which you see commercial value and which you intend to commericalise, get it registered as a design
  • 37. Things to remember • Till the time you file a design application, treat it as confidential when you need to disclose it to wholesalers/exporters/in a portfolio • Have clarity on the ownership of the designs that you create by entering into contracts that spell out who owns the designs o Maintain documentation and records at every stage of product development – helps you claim copyright even if your design is unregistered
  • 38. Things to remember • When using designs, do your due diligence on the ownership of these designs – give credit, take licenses • Commericalise your design through license arrangements
  • 39. Things to remember o The fashion design community should lobby and build pressure on legislators and the government to provide for an “unregistered design right” as exists in the European Union