ABSTRACT
Fast fashion trade has been at the heart of so many legal battles due to its economic crime involving selling clones of products by leading fashion designers. This paper focuses on the comparatively marginal unlawful nature of knockoffs as it takes a look into the legal frameworks and guidelines on the IP legal action in the fast fashion industry including the copyrights, trademark, and design legislations. This also includes statutory exceptions, key case laws, innovations and change in IP rights. The opinions of jurists refer to multilateral relations between cheap casual fashion, originality, and law. Thus, the article presents recommendations for increasing legislation and corporate governance measures.
KEYWORDS: Knockoffs, Fast Fashion, Intellectual Property, Trademark Infringement, Design Law
INTRODUCTION
Fast fashion has over the last few decades changed what fashionable clothes mean and made fashionable clothes affordable cheap fashionable clothes.
This industry, however has critics on its side because it deals with the fake – counterfeit goods – which resemble originals of high end designer brands. Bogus products increase even greater legal consequences on the whole and mainly in the systems of IP laws. Althougb clones have thus far allowed suit customers to dress to impress with fancy cheaper coordinates, they are a threat to designers reckoned unique and original trademarks. There is some legal protection accorded to original creators through copy right, trademark and design laws. However, the enforcement of the laws varies from one region to the other and most firms related to fast fashion are exploiting the legal loopholes. Hence, the question about the illegality of knockoffs is still to be had, and it becomes more relevant that the stronger participants of the fashion industry still need strengthening of the existing legal contexts. This article addresses specific legal questions arising in the context of knockoffs in fast fashion and thereby ascertains how knockoffs fit into existing law, how law works or is lacking in this area, what questions remain that can be more adequately answered by a global legal initiative, and whether designers and consumers of fast fashion garments are protected adequately in the fast fashion environment globally.
Fast Fashion and Knockoffs: An Overview
Another trend linked with fast fashion is that it targets cheap clothing items that are produced quickly to resemble fashions that are popular with the leaders in this trade accompanied by haute couture. Although it makes clothes and other fashionable products more accessible it leads to their imitation—fake products that imitate designer brands. These clones are quite vague on questions of legal and ethical appropriation or piracy. Fast fashion business personalities rely on often changing trends, quick to manufacture cheap look alike clothes in large quantities to those expensive, unique fashionable creations.
This has provided the most considerable challenges for Intellectual Property (IP) with reference to areas such as copyright, trademark, and designers right. While some believe it brings the fashion to a larger audience other think that knock-offs harm creativity of original designers and can even harm brand equity. The legal issues on knockoffs in fast fashion industry continue to be discussed and advocated to be enhanced; additionally, it has further demanded legal compliance and accountability.
LEGAL PROVISIONS AND FRAMEWORK
Pursuant to academic literature, knockoffs and fast fashion relate to the areas of copyright, trademark, and design protection or patents. This section provides the laws and acts from various legal systems around the world, as well as listing a number of statutes and sections.
COPYRIGHT LAW
Copyright law also protects works that are original with the author and are embodied in any medium. However, the application of the subject right, that is copyright protection, hinges on territoriality.
The Copyright Act, 1957
Section 2(c): Gives meaning to “artistic work” and covers paintings, sculptures, drawings (which include designs), and art works of artistic craftsmanship.
Section 13(1)(a): Covers original artworks in the form of paintings, sculptures and drawings.
Section 51: Enumerates behaviour whichamounts to infringement of copyright.
Section 15: Considers the period of copyright protection in designs that are under the Designs
Act with the copyright protection confined to the designs that are not registered or registrable.
Copyright Act of 1976
17 U.S.C. § 102(a): States that works that are protected are pictorial, graphic, and sculptural works.
17 U.S.C. § 101: Provides meaning to the term useful article as well as the nature of separability of the claimable components of the useful article.
However, in the US, a clothing design usually comes close to the definition of a useful article and will not qualify as a protectable design unless it has a separable artistic element.
Trademark refers to the legal right that protects a sign, a name, a designation, or a slogan used as a brand of goods or services.
TRADEMARK LAW
The Trade Marks Act, 1999
Section 2(1)(zb): Defines the term “trademark” as a mark that is graphical and can differentiate goods or services.
Section 29: Explains the meaning of the infringement of a registered trademark.
Section 135: Covers remedies of infringement of trademark and passing off.
Standards and procedures for trademark protection lays down the practice and exercise of trademark registration and protection in the United States of America.
15 U.S.C. § 1114 [Section 32]: Covers cases of violation of registered trademarks.
15 U.S.C. § 1125(a) [Section 43(a)]: False designation of origin and Trade Dress infringement.
DESIGN LAW
Design law offers protection of the shape, appearance or other characteristics of a tender.
India
The Designs Act, 2000
Section 2(d): Things are defined to contain ‘design’ where it means features of shape, configuration, pattern, ornament or any other applied lines or colours on any article.
Section 4: Countries which require that designs cannot have been published prior to application for registration.
Section 11: Provides design with protection for a 10 year period which may be renewed for an additional five years.
Section 22: Explains what it means to pirate a registered design and the penalties associated with same.
Aesthetic design registration grants owners proprietary use of the applied visual paradigm on objects; it thus is an invaluable weapon against imitations.
European Union
Council Regulation (EC) 6/2002 dealing with Community Designs
Article 4: Prescribes the criteria to be met for the obtaining of a design protection.
Article 19: Also enables the holder to have a monopoly over the design and prohibits others from making use of it.
Protects both registered and unregistered Community designs, assisting the designers in fighting cases of copying.
SIGNIFICANT AMENDMENTS
The Copyright (Amendment) Act, 2012 (India)
Purpose: Enhanced protection of copyrights and provide improved protection for authors and creators in general as well as for those in the fashion world in particular.
Significance: Adopted for moral rights protection, which assures that the authors are capable of prohibiting falsehood regarding the works.
Strengthened copyright protection, especially for the first creations, when launching original items in fashion is rather a complex task.
They discussed sharing of copyright materials online which also concerns fashion designs posted online.
The Trade Marks (Amendment) Act, 2010 (India)
Purpose: Enabled India to accede to Madrid protocol by which trademark registration can be done internationally.
Significance: This helped Indian fashion brands apply for protecting their trademark in foreign countries through a single application.
Enhanced protection against fake goods that incorporate brand logos and trade names internationally.
The Designs (Amendment) Rules, 2021 (India)
Purpose: Passed simplified design registration procedures in addition to the acceptance of electronic filing processes thus liberalizing the protection of design rights.
Significance: Assisted fashion designers to protect their creations and go after counterfeit products by providing simple ways of making registration.
Extended legal measures for new and refreshed designs, so fast fashion companies may not be copying them easily.
The Prioritizing Resources and Organization for Intellectual Property (PRO-IP) Act, 2008 (United States)
Purpose: Enhanced measures in the protection of IPR in the United States, including enhanced mechanism in the fight against counterfeit goods.
Significance:Sharpened penalties on fakes and improvements on federal campaigns against imitation products.
Initiated the Intellectual Property Enforcement Coordinator (IPEC) to guarantee that IP enforcement would help fashion brands avoid counterfeit actions.
The Intellectual Property (Unjustified Threats) Act, 2017 (United Kingdom)
Purpose: Innovated exceptions to protect against frivolous threats of legal action relating to the infringement of Intellectual Property rights.
Significance: Enabled original inventors or designers in the fashion industry to seek redress for individual IP infringement, without having to worry about being hit with meritless cross claims.
Simplified the procedure for undertaking appropriate actions against the fake products.
Council Regulation (EC) No 6/2002 on Community Designs (European Union)
Purpose: Aims at offering for the protection of registered and unregistered design in the territory of the European Union.
Significance: Enhanced protection of designers from imitation of the designs for a period three years under the provision of the unregistered Community design.
Shelter fashion designers by affording them the chance to exclude imitations from access into the market without cumbersome registration processes.
LANDMARK JUDGMENTS AND CASE LAWS
Burberry Ltd. v. J.C. Penney Corp. (2016): This apparel giant recently sued J.C. Penney for selling scarves that they claimed copied Burberry’s well-known check motif. The case was resolved, which proves the difficulties in asserting design infringement.
Christian Louboutin S.A. v. Yves Saint Laurent America, Inc. (2012): This particular case dealt with the red sole of Louboutin shoes and built on the protection of the right to trademark of certain elements of fashion individuality.
Microfibres Inc. v. Girdhar & Co. & Anr. (2006): Acknowledging this, the Delhi High Court long ago realized that artistic works used in industrial processes could still be protected by copyrights if not registered under the Designs Act.
CONCLUSION
In the fast fashion industry, individuals currently rely on counterfeits and imitation, thus giving rise to legal issues mainly on copyright. Though fast fashion brings fashion trends nearer to the common man it tries to interfere with the rights of the first creative thinkers. Currently, there is legal protection through copyright, trademark, and design laws but the entities are not completely safe from piracy. Some of the legal cases in India include Microfibres Inc v/: Christian Louboutin SAS to show that there is a need for better protection methods for real brands than ever before. However, the problem is to find an adequate ratio between the protection of the designers ‘rights and the favorable conditions for competition and new trends in the sphere of fashion. If the purpose of patent laws is to protect innovation while at the same time making it widely available then there is a need for much stronger and perhaps internationally coherent legal provisions. In conclusion, integration of the numerous legal mechanisms together with enhanced enforcement can and will safeguard the rights of the original creators without dampening the tempo of the fast-fashion segment’s continued growth in the current society.
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WRITTEN BY: PAYAL DEVNANI
