Steal waters run deep

At the core of the textiles, apparel and fashion industry lies an entity: the product. The already globalised world, now more connected through the internet and made all the more chaotic by social media, as also the ease and accessibility of digital technology, is now a trickier terrain to traverse. The industry is now also about copyright violations, rampant piracy, and control over intellectual property rights, says Subir Ghosh

Sometime in the early 1990s, a well-known designer in Delhi spotted a person at an upmarket shopping complex wearing a stunning outfit in cream and red. But when he took a closer look he was in for a shock, for the woman was wearing one of his own designs. Worse still, the design had not yet left his studio. The designer, obviously, queried her and discovered that she had purchased it from an upscale boutique. This creation was in a different shade, but the material was ordinary. The designer was in for another shock: the boutique owner, in fact, was one of his own clients. What this person had done was simply make mental notes of the designer's work, and replicated it in her own modest way. That's how easy it was to pirate in a world that had not yet known the internet.

Close to a quarter of a century has elapsed since the designer's shock discovery, but the story has not changed much. Or, perhaps it has changed on a different level, and scale too, altogether-the process of pirating, copying and replicating has become more sophisticated, and is increasingly mired in legal wrangles. In a world more connected through the internet in a globalised scheme of things, rendered all the more chaotic and fluid by an out-of-control social media, not to speak of the ease and accessibility of digital technology, the interplay of creativity, innovation, culture and law are together making the fashion landscape a trickier terrain to traverse.

Law law land

Most discussions about textiles, apparel and fashion hover around either industry, or dwell on consumer choices and trends. Missing from the passionately-argued debates around sustainability, technology and policies is what lies at the core: the product itself. Even a cursory look at some of the developments in the past one year can indicate how turmoil-ridden and vibrant matters are.

Only a few months back, designer Rohit Bal reportedly became the first designer in the country to copyright his entire collection. This created a flutter, though confined more to the Page 3 elements in the mainstream media. There was an immediate cascading effect on the fraternity, with other designers like Anju Modi and Anita Dongre copyrighting their entire collections ahead of the Fashion Design Council of India's (FDCI) India Couture Week. But once again, discussions about the subject were more in the world of glitz than in the more hard-wired and mundane industry.

The Indian landscape, however, is not that controversy-driven or marred by legal wrangles as yet compared to what is already happening in North America and Europe. Lawsuits there are not only increasing in frequency, those are becoming more acrimoniously-fought too. Moreover, since many of those are being contested across international boundaries, the outcomes-as and when they happen-will have a far-reaching effect across the global textiles-apparel-fashion industry. There are a number of recently-judged or still-pending cases that should be taken note of.

In what came to be known as the "cheerleader case," a lawsuit was filed against Star Athletica by Varsity Brands Inc, the biggest US maker of cheerleader uniforms. The latter accused its relatively-smaller rival of infringing on five of its designs. There was something fundamental to the case-whether the stripes, zigzags and chevrons that are considered elementary to cheerleader uniforms could be copyrighted at all. A district court ruled in favour of Star on the grounds that the designs were not eligible for copyright protection because they "served the useful, or 'utilitarian', function of identifying the garments as 'cheerleading uniforms' and therefore could not be 'physically or conceptually' separated 'from the utilitarian function' of the uniforms."

This decision was reversed on appeal by a circuit court of appeals which found that "the 'graphic designs' were 'separately identifiable' because the designs 'and a blank cheerleading uniform can appear side-by-side-one as a graphic design, and one as a cheerleading uniform. ... [T]he designs were 'capable of existing independently' because they could be incorporated onto the surface of different types of garments, or hung on the wall as framed art."

The matter went to the Supreme Court of the United States which subjected the issue to a two-prong test:"[A] feature incorporated into the design of a useful article is eligible for copyright protection only if the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article and (2) would qualify as a protectable pictorial, graphic, or sculptural work-either on its own or fixed in some other tangible medium of expression-if it were imagined separately from the useful article into which it is incorporated."

On applying this test to the cheerleading uniforms, the court ruled on March 22, 2017: "First, one can identify the decorations as features having pictorial, graphic, or sculptural qualities. Second, if the arrangement of colours, shapes, stripes, and chevrons on the surface of the cheerleading uniforms were separated from the uniform and applied in another medium-for example, on a painter's canvas-they would qualify as 'two-dimensional . . . works of . . . art,' 101. And imaginatively removing the surface decorations from the uniforms and applying them in another medium would not replicate the uniform itself. Indeed, respondents have applied the designs in this case to other media of expression-different types of clothing-without replicating the uniform. The decorations are therefore separable from the uniforms and eligible for copyright protection."

The court decision was landmark, and was invoked by German giant Puma when it filed a design patent, trade dress and copyright infringement lawsuit against retailer Forever 21 later that month. Puma claimed the retailer had ripped off at least three of pop star Rihanna's designs. Rihanna has been Women's Creative Director and brand ambassador for the sportswear brand since 2014. In June, a federal court refused to bar the retailer from selling the designs in question.

In 2011, a case was filed by Ritika Pvt Ltd of designer Ritu Kumar against Biba Apparel Pvt Ltd seeking similar restraint. Ritika claimed to be the first owner of the copyright in the "artistic works" related to these garments and also alleged that trade secrets had been divulged by some of its former employees. However, the designs were not registered under the Designs Act. Biba Apparels argued that Ritika's claims had no ground since those designs ceased to exist after having been reproduced more than 50 times by an industrial process. The Delhi High Court on March 23, 2016 concluded that not only was Ritika not entitled to any design protection, it was also not tenable for the company to enforce its copyright in the original drawing of the designs. The court said, "The defendant is creating dresses or creating articles by an industrial means and process by application of the design or drawing or sketch and the defendant is not as it is affixing a print taken from the copyrighted work of the plaintiff as a print on a dress created by the defendant. Issue in the present case therefore will not be a violation of a copyright of the plaintiff under the Copyright Act."

Challenges as of now

When all these cases are conflated with the scenario of a globalised world, the subject of intellectual property rights (IPR) and resultant legal battles take on a different dimension.

Amit Sinha, discipline lead for apparel design at the National Institute of Design (NID), says, "The threat of piracy, fake versions of popular labels or brands by misusing logo or identity unethically, violation of design rights of a fashion product or motif or approach or form or finish or material-colour combinations and unethical design policies and practices by a copying manufacturing setup or designers are biggest threats that are increasing day by day globally. All well-known brands or good designs of one country are being produced unethically in other locations without acquiring any legal right of using the product or even the unethical use of actual logo or identity on a fake product."

Sinha believes that the subject needs attention from both national labels or brands as well as ones active globally, and argues, "Awareness of the right processes and approaches are perceived as complicated because of the lack of right communications or resources. Easy-going and casual attitudes about it in the past have also prevented people from considering these to be major threats." He thinks that a more original innovation-led economy can lead to more involvement.

Surojit Bose, director for academics and international collaborations at the Unitedworld Institute of Design, cites the examples of Chloe and other luxury fashion brands successfully suing Pakistan based e-commerce company Trade Key and others for contributory infringement and violation of US counterfeiting laws, by aiding in the sale of counterfeit products, and also that of Gucci defending its trademarks after Forever 21 hit back against a wave of cease-and-desist letters that the luxury brand sent the retailer over of its use of the stripe webbing on several items.

Bose maintains that fashion designers should consult with legal counsel and consider all areas of intellectual property law in order to maximise protection for their fashion designs. He says, "Designers should also consult with legal counsel to consider whether their designs, or any of the individual elements that make up their design, are non-functional and have sufficient acquired distinctiveness to merit trademark protection and registration as a trade dress. Further, while most designers and brands have taken the basic step to register their names and logos as trademarks, many overlook recording their trademark registrations with Customs. In fact, some well-known designers and brands participating in fashion weeks do not seem to have done so."

Moreover, "designers should also consider creative ways to stop infringements, including seeking to freeze the infringer's assets and bringing third-party liability actions that target landlords and flea market owners that house counterfeit and infringing products. Fashion designers can also go after internet service providers and payment processing companies that enable online purchases of counterfeit and infringing goods." Those are just three ways of tracking IPR violations.

There are issues with the laws as well, as evident from the Tahiliani and Ritika cases. That is because, as Vandana Narang, Delhi campus director of the National Institute of Fashion Technology (NIFT) points out, the Designs Act does not protect the entire garment as a whole; "rather, it only protects the particular/individual aspects like shape, pattern, colour, etc. It is easy to play with permutations and combinations of individual aspects of an entire garment and get away" with piracy.

Narang continues, "The other most common fear is the time-consuming process of registration, which needs at least six months. Hence, in a rapidly-changing fashion industry where the trend changes every day, it would not be economically viable to hold a design for such a long period. In brief, the IPR legislations do not suit the needs of the fashion designing industry on account of three reasons: (i) no protection to unregistered designs; (ii) time-consuming registration process; and (iii) inadequacy of damages." Finding a legal solution may not always be worth the trouble.

Globalisation of problems

As it repeatedly becomes obvious, and rampant too in a way, the subject of copyright violations becomes difficult to track and tackle in a world where international boundaries do not mean much.

Sinha says that in today's context, this solely depends on pro-active measures as well as networking and reputation among their real users or well-wishers. "The labels/brands can have a smart communication network presence which can help their users or admirers become aware, and this automatically increases their reach in comparison to their own operational limitations."

One of the important facts to understand is that a label/brand can claim its IPR/copyright only in the country where it has applied or taken the right of a specific design or product. "In this case, the brand/label will not be able to claim its right in countries other than its own. For being able to claim the same in multiple countries, it needs to acquire the rights in all countries where it intends to operate or supply. But, at the same time, it still cannot ensure the same in all countries of the world. Also, the rules and regulations related to IPR/copyright vary from country to country."

For something as abstract as design, according to Bose, one can start by patenting the entire design process right from basic to advanced sketches and up to prototypes. "At a minimum, designers should file for a copyright registration for any original prints and patterns, and consider filing for a copyright registration for any design elements that can be physically or conceptually separated from the functional aspects of the designer's apparel and accessories. If the fashion design is expected to last beyond a season and can be considered an ornamental, novel and non-obvious design, then the designer should also consider applying for a design patent," he says.

In that, one needs to concentrate on the home front, and with the legal process in the country. Sinha observes, "As the regulations of copyright laws are not same in every country and varies with its own versions too, Indian copyright laws for design or products are strong, and as competent as any other law." He, however, raises an important issue, "It (the law) also needs to pay attention in terms of protecting the use of Indian community or traditionally-owned crafts, motifs, textiles, techniques, methods or their original names that are used to promote a designer label/brand's work claiming such methods, etc, as the label or brand's own. The culture of craft has lost to the modern world because of such reasons." He calls for an ethical approach to the subject.

Narang points out legal overlaps. "Implementation of copyright laws comes with a lot of overlapping in between. Most cannot decide which copyright protects them. A fashion designer seeking to protect his/her creations under the Copyright Act needs to prove: (i) that his/her creation is an 'original artistic work' within the meaning of the Copyright Act, and is not a 'design' within the meaning of the Designs Act; and (ii) that the article (e.g. garment) to which the design derived from the creation has been applied, has not been reproduced more than fifty times by an industrial process by the owner of the copyright or, with his licence, by any other person.

"The above proposition apparently looks very attractive to fashion designers as it extends copyright protection for their creations. However, the scope of this protection is limited and not worthwhile for large number of fashion designers as it enables the designers to protect only their couture lines where in only limited pieces of an exclusive garment are created. And hence, it can be said that the copyright laws require more precision for their implementation in the fashion Industry."

When tomorrow comes

The challenges of tomorrow would be of changing patterns in counterfeiting and piracy. Narang argues, "Counterfeiters are getting more clever. They are exploiting technological advances to produce copies that are hardly distinguishable from originals, in some cases even outsmarting proprietors. They are making extensive use of the internet, resulting in the sale and distribution of fake goods at enormous speed and with no geographical limitations. And, they are seeking to circumvent border measures by moving imitation goods across borders in 'disassembled' forms, i.e. waiting until the consignment has passed through Customs before sticking on the trademark labels which would make it obvious that the goods are counterfeit. The scale and nature of the problem demands a coordinated approach to enforcement measures at the national, regional and international levels."