PAYING HOMAGE: EUPHEMISHM, RIPPING-OFF: DYSPHEMISM FOR COUTURE COLLECTION

       With on-trend sartorial sense impregnating the fashion-savvy commoners, the skillful creators of these iconic artworks should now take a pause to see if the silhouette of their couture collection is clinching the right clientele. More often than ordinarily, the knockoffs and counterfeiting goods are touted as a convenient choice under the pretext of paying customary homage to the designer’s avant-garde luxury piece. Really? It's all full of psychoanalytic mumbo-jumbo.

       Now a straight talk-it’s nothing less than a rip-off, and as these dark clouds of piracy embraced the whole sky of aesthetic creations, a ray of hope emerged when recently a magazine reported of designers becoming fully aware of copyright laws and successfully “patenting” their design portfolios (See Link). For now, I would bide my time to comment on media’s bold and blithe use of some serious legalese, and chose to focus on what the IP creators shouldn’t be saying wrong. Agreeably, it’s not their field of practice and they are not the ones to be satirized for not knowing it right; yet as generators of intellectual wealth they should be cursorily informed of the intricacies of wealth protection & its strategic management in order to effectively safeguard their wealth and coin money therefrom.  .    

As can be deduced from the media report, availing copyright or trademark form of coverage for creative expressions is certainly trending amongst the designers. But, it is equally pertinent to know what kind of protection is extended by these IP forms singly or in combination, or if there is something else to deal with when instituting infringement proceedings against unscrupulous free riders.

Indeed, copyright is sought for original and unique artistic creations and trademarks for personalized logos and slogans as epitome of finely accrued IP rights by designers. But is this effort fulfilling when it comes to protecting something more fundamental-like shape and design of clothing, apparels, garments, jewelry, ornaments, fabric or the like, in its entirety? So, how to promise protection of something that actually matters----innovative DESIGN, which pushes the artiste to travel an extra mile, and compose designs that goes beyond traditional boundaries of style.

Industrial Design Act of 2000 comes to rescue. However, with ambiguous and overlapping IP laws governing design works in India, it is rendered rather more difficult to narrowly tailor the IP rights that are less expensive to obtain, are easier to enforce and are broad enough to secure as much of the innovative design as possible. This suggests developing an IP portfolio that includes both broad and narrow rights rendering different range of protection under differing circumstances. As can be adjudged from legal dispute between Ritika Private Limited (Plaintiff) and Biba Apparels Private Limited (Defendents) over creations in fusion fashion (See SpicyIP), neither forms of IP protection can solely suffice to stop knockoff or near knockoff products from entering the market. But, prior to this it is critical to analyze where these IP forms overlap, if they do and how well to draw a clear line of separation between them.

 Logically, it flows that while Section 2(d) of Designs Act offers protection only to the features of shape, configuration, pattern, or ornament, or composition of lines or color or a combination thereof applied to an article by any industrial process, Section 15 of Copyright Act states that a copyright shall not subsist in a design protected under the Design Act. Precisely, no copyright shall exist in a design, which is capable of being registered under the Design Act, and which has been reproduced more than 50 times by an industrial process. 

           The judicial precedence established by Courts until today, for instance referring to Microfibers Inc v. Girdhar and Co., suggests defining the artistic work into “original artistic work” and “commercial or industrial manifestation of such artistic work”. It further mandates that though copyright exists in original artistic work per se, the design would have to be registered under the Design Act to institute case of infringement against the accused.  If such protection is not sought under Design Act for specific set of classes stipulated in the Act, the copyright in these works shall cease to exist after the design is applied to articles for more than 50 times by an industrial process.

           But isn’t it intriguing that while the most prevalent forms of protection vis-à-vis copyright and trademark that remain subdued in representation sheets at IP offices, or are hidden as labels beneath the branded apparels or stitched into the fabric as a midget representation of one’s protected brand, are accorded a longer period of protection than the design form. Understandably, it is rather the design form which enables the artist recoup the cost of his intellectual and financial investments using his underlying work upon a 2D or 3D article of production. Furthermore, while the infringement of copyright and trademark constitute civil and criminal wrongs, the infringement of designs is purely a civil wrong. So, should we assume that designers should now assert copyrights in blueprint to prevent manufacture of 3D artistic models beyond unpleasant threshold of 50? 

Definitely one size does not fit all, and no one strategy can be extrapolated to all cases. The Design Act of today does not allow sectional views, descriptive matter and reference numerals in the representation of article during filing of design application, but more favorably, it allows combination of solid lines and dotted lines to depict both the claimed features of shape and also the elements which are not part of claimed designs, respectively.

Such a depiction claims much more by way of drawings, photographs, tracings to yield a broader form of protection to non-utilitarian design, compared to a copyright application that merely serves as a substrate for artistic matter and may be lost when the article is offered for sale. Also, even if copyright intends to protect the work longer, it might not be of much relevance in fashion industry owing to seasonal and cyclic nature of work generated, unless of course it becomes any classic like Hermès Kelly Bag.

Though the remedies offered under copyright law are more moderating than those offered under the Designs Act, yet if the question of enforcement of legal rights over a bundle of protected papers and an article of commercial significance arises, then inarguably latter shall be the obvious choice. To conclude, the kind of protection which the designers of today should be ambitiously aspiring needs to be twofold- under both of copyright and design regimes. Unless the dual protection is attained, the creator shall loose copyright protection, though gain design protection once a design is registered. On the other hand, the creator relying solely on copyright protection might lose the protection when the design is applied industrially beyond 50.