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Fashion Industry and Intellectual Property Rights

Presented by

Poorvi Chothani, Esq.


LawQuest, Mumbai
www.lawquestinternational.com

The Burgeoning Fashion Industry in India

http://www.ritukumar.com/

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Issues Facing the Fashion Industry

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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

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 Intangible Assets Changes In Legislation
http://www.ritukumar.com/

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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 http://www.ritukumar.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 Registered And Unregistered Designs The Benefits Of Registered Design Protection
http://www.wendellrodricks.com/fashion.htm

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International Treaties
India is a member or signatory of several international IPR related organisations and conventions: World Trade Organization (WTO) TRIPS
Word Intellectual Property Organisation (WIPO)

Paris Convention for the protection of Industrial Property Patent Co-operation Treaty (PCT) Budapest Treaty

Singapore Treaty on the Law of Trademarks


Madrid Protocol on Trademarks

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Intellectual Property
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.

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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.ditto.com

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Protection of Logos

The intellectual property rights like logos, names and labels are perotected by Trademark Law

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Trademarks

A Trademark is a means of identification of goods or services, a symbol which an organisation or person wises the consumer to identify with its goods or services as opposed to that of the competitor Registration of Trademarks is governed by The Trademarks Act, 1999 Protects logos and brand names, and may also apply to a distinctive way of stitching, pattern, trade dress, etc.
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 Proposed To Be Used, Or Any Combination Thereof Trade Dress the 1999 amendment protects shape of goods and combination 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 existing mark of another person and not be expressly prohibited under the Act.

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 Services As Originating From A Particular Source From That 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 of ten years Failure to use a registered trademark for a continuous period of five years may result in cancellation

http://www.ditto.com/

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Infringement

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

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Evidence of Trademark Registration

SEAL

Pepsi and Coke


http://www.ditto.com

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Trademarks and the Internet

Domain Names Importance Of Maintaining Similarity


Global Impact Of Trademarks Domain Name Disputes Claimants Reliance On Trademark Ownership Misdirection Of Search Engines Dilution Of Famous Marks Malafide Use, Parody And Commentary Trademark Infringement And/Or Passing Off (Misrepresentation) In Multiple Jurisdictions

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Copyright Subsists In
Copyright is an exclusive right granted to the author of an original work for a limited period of time with the right to exploit that right.

Artistic Works Original Literary Computer Software Dramatic Work Musical Works Cinematographic Films Photographs Sound Recordings etc.
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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 "reverse engineering" of a garment or designs created independently

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Copyright Notice
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or
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This copyright notice must be placed in such way as to give reasonable notice of the claim to copyright.
http://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 Rights

Copyright gives the author of a literary, dramatic or musical work, the right to:

Reproduce the work in any material form including the storing of it in any medium by electronic 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 a bundle or individually to another party
http://www.suhanipittie.com

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Duration of Copyrights

Literary and Artistic Works: 60 years from the death of the author (Calculated from the calendar year following the year of death)
Copyright is subject to certain limitations Statutory Licensing Fair Use Exceptions Compulsory Licensing

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Infringement and Plagiarism

Use of Copyrighted Material Without a License or Right or in Contravention of the License Injunctive Relief May be eligible for damages Penalty Imprisonment of 7 days to 3 years Fines from Rs. 50,000/- to 2,00,000/

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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 or property mark or artistic works as defined under the Copyright Act, 1957

http://www.ditto.com

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Designs

Design is a visual appearance of a particular product Grants a right to sell, use and assign the design for manufacturing Design must be distinctive, new and easily identifiable Design must not be used, published or disseminated in any way prior to Design Registration

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

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Advantage of Designs Rights

Gives the owner an exclusive right against unauthorised copying or imitation of the design by third parties

Protecting industrial designs helps economic development, by encouraging creativity in the industrial and manufacturing sectors, as well as in traditional arts and crafts

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 not produced 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 a diagram, map, chart or plan) on engraving or a photograph, whether or not such work possesses artistic quality. An work of architecture and any other work of artistic craftsmanship.

http://www.fashionclub.com/career-studio/sketchbook/articles/sept-2005/virtual-fashionstudent.shtm Albert Ng

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Duration

Initially ten years from the date of registration, or ten years from the priority date May be extended by a further period of 5 years

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 article belonging to class of articles in which the design has been registered for the commercial purpose without the written consent of the registered proprietor In case of infringement, the person is liable for every offence to pay a sum not exceeding 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 any such 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 be filed in any court below the court of District Judge.

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Infringement and Plagiarism

Unauthorized commercial use of a registered design or

its imitation to any article for the commercial purpose

May be eligible for damages Penalty or Contractual Damages- Rs. 25,000/- to Rs. 50,000/

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Copyright and Designs Overlap

Copyright Vs.

Design Protection
http://www.seasonsindia.com/

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Patent Protection

Protects inventions

An invention means a new product or process involving an inventive step and capable of industrial application (S. 2(1)(j)) Granted to Innovative, Novel Products and Processes Designers may be able to patent new, inventive and useful devices. Artistic creations cannot be patented and therefore patents are not widely adopted by designers from fashion industry. Inventions by Buck Weimer and CSIRO which control odours and body temperature respectively in garments have been successfully patented in the US

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 most designs 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 years or with fine or with both. (Amount of the fine is not specified).

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

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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 Validity 10 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 with employees

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Going Forward
Creativity Is Key To Success In This Industry

It Is Essential To Protect And To Enforce Creativity and Ensuing Intellectual Property Rights
Necessary To Increase Awareness Of Rights and Penalties for Infringement

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LawQuests Practice Areas


Immigration Law Global Immigration Solutions Intellectual Property Rights Laws Trademark, Copyright Registration Design and Patent Registration Assignment and License Agreements IPR Litigation Non-Disclosure Agreements Non-Compete Agreements Corporate Law Commercial Transactions Incorporation of a Company Foreign Investment Property Law Documentation Title Verification Stamp Duty Issues Litigation Personal and Family Law Wills Testamentary and Intestate Matters Matrimonial and Family Law Inheritance Adoption

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