By: Diya Mehta
“Fashion is very important. It is life-enhancing, and, like everything that gives pleasure, it is worth doing well.” – Vivienne Westwood[i]
Indeed! But what is the fashion of the day? The task of defining it has become exhausting as ever, owing to the speed with which what’s in the trend and what’s not changes- a process called “fast fashion”. One may now be able to relate as to why the ‘culottes’ that were so trendy when you went shopping last month are now suddenly old-fashioned and why the racks in the stores are now filled with the ‘boot-cut’ jeans.
The giant industry, however, is not free from the rampant practices of ‘imitating’ and ‘counterfeiting’-the terms having larger legal and moral implications than a common man might be able to accentuate. Therefore, to combat this evil, most legal systems have intellectual property law in place. Intellectual property law helps protect the creative and inventive creations of human intellect.[ii] The technological advancements and digitalization have made it necessary to extend protection to the creative minds that have nurtured the fashion industry and made it a billion-dollar industry.
Trademark
Trademark is a type of intellectual property right that helps the consumer to identify the source of the goods. That interlocking GG of Gucci, YSL letters of Yves Saint Laurent’s, raises eyebrows of the masses for the twofold reasons-the instant association of the goods with their source (a well-known luxury brand) and the whooping price that a person in the possession of such goods might have paid. Trademark, therefore, acts as an effective source of protection for the designers who incorporate trademark protected symbols and logos in their designs.[iii]
The ongoing battle between Kanye West and a fragrance company for their respective “YZY” trademarks is one such trademark issue that adumbrates how two companies are forbidden from having identical marks that might confuse or deceive the consumers concerning the source of the goods.[iv]
Trade Dress
Trade dress is a kind of protection extended to a product when it is distinctive or acquires a secondary meaning. The robin blue color of tiffany’s packaging or the infamous red sole heels of Christian Louboutin’s, helps the consumers to directly link it to the source. What’s new is Valentino’s quest for acquiring trade dress protection for its “three-dimensional configuration of a shoe with a single ankle strap and T-strap and collar which are adorned with pyramid shaped studs”.[v]
Patent
Patent law protects the novel, useful and non-obvious innovations. Applicable to both design and utility patents, patent protection even though watertight, hardly comes handy to the fashion industry because of time-consuming procedure of patent applications and frequent changes in fashion trends.[vi] However, there are still some designers that hold successful patents. One such patent is Virgil Abloh’s Off White patent for paperclip jewelry. The patent is not for the paperclip shaped jewelry which has nothing novel in it but for the jewelry pieces with elements shaped like paperclips and which are studded with small jewels or rhinestones.[vii]
Copyright and Designs Act
There has been a lot of dilemmas and back and forth with respect to the protection granted, under the two Acts, to the designers in India. Copyright Act, 1957 protects the ‘artistic work’ and the Designs Act, 2000 on the other hand extend protection to the ‘original designs’ including the shapes, configurations, pattern, ornament, and composition of lines or colors.[viii] However, the line between permissible copying and design piracy is blurry due to the difficulty in defining the originality of the designs.[ix] Also, the mandatory provision of getting your designs registered which entails a lengthy procedure further adds to the hardships faced by the designers due to fast-changing nature of the fashion industry. Additionally, the sanctions imposed against the infringer is of minuscule amount of Rs. 25000.[x]
The Ripple Effect
The intellectual property available to the fashion designers, though varied, is still deficient. The claim stands because of the lack of a proper mechanism to protect the designers and their creativity, the failure to fight against the prevalent organized crime of counterfeiting, rampant copying of designs and selling it for cheap, and its domino effect on sustainability.[xi]
As asserted above, there are some legal, social, and moral impacts associated with the practices of counterfeiting and knocking-off.
Effect on the Environment
The thirst to be up-to-date with the latest fashion trends come at an enormous cost. The fast-fashion era though quenches this thirst of people belonging to different economic cadres, it leaves a catastrophic impact on the environment. There are only so many resources available on the earth and keeping up with the ever-increasing demand has thus become a daunting task. Cotton production requires land masses and water for irrigation which in turn leads to water, air, and land pollution.[xii] Manufacturing a piece of clothing also requires a ginormous amount of water. What further adds to the environmental concerns associated with fast-fashion is the chemicals and dyes used for the production of clothes. These harmful substances are dumped into water bodies leading to hazardous implications. Adding even further is the mountainous land-fills, overfilled due to discarded clothes that were once the ‘new thing we had our eyes on’.
Crushing Human Rights
How fast is too fast? The question will hold relevance when instead of turning blind eye to what goes behind the veils of the gigantic fashion industry is known to the general people. The very same designs introduced by a designer on a fashion show which might take him around 6 months to make it available for sale, takes less than 2 weeks to hit the stores of the participants and promoters of the fast-fashion race. The impossible becomes possible only because of the labor law violations involved in the process. The British fast-fashion giant ‘Boohoo’ has been accused of cramped high-density conditions, with wages falling below the standard basic wages.[xiii]. Brands like GAP, Zara, and Forever 21 have been as guilty as Boohoo for employing underaged children and paying them by the system of per-piece, forcing them to put in longer hours at work under inhumane conditions and for the payment of the size of a peanut. What’s required is to ponder whether paying cheap prices for knock-offs is even worth it when the plight of children employed in the garment factories with filthy conditions and poor wage system is on the rope. After all, Lucy Siegle (journalist and author) puts it correctly, “Fast fashion isn’t free. Someone, somewhere is paying.”[xiv]
Drug Trafficking and Terrorism
Better technology has made it effortless to manufacture counterfeit products that look convincingly real.[xv] With counterfeit products, the wrongdoing does not stop at trademark infringements but it also abets crimes like drug trafficking, human trafficking, and terrorism. In 1993, when law enforcement officials raided a warehouse in Manhattan full of counterfeit products they found drugs sewn in the lining of the handbags.[xvi]It is also believed that Al Qaeda and other terrorist organizations fund themselves through the sale and trafficking of counterfeit goods.[xvii] What is even scarier is obtaining the goods legally by producing knock-offs and adding labels of known brands like Prada, Chanel, Gucci, only after the goods have cleared the customs.[xviii]
But how is it possible that the practices of counterfeiting and piracy are still flourishing when there is law in place? The design piracy and counterfeiting are possible because of the lack of globally synced intellectual property law available for the industry and shortcomings of the existing laws. Ironically, there is an ongoing debate on whether or not the scope of intellectual property protection available to the fashion industry should be widened. The reason for debating on what should have a black and white answer is because of what people call- piracy paradox. It is believed that faster the cycle of fashion, greater will be the incentive for top tier fashion designers to innovate, only to be copied once again, giving a push to keep the wheel of fast-fashion rolling.[xix] The advocators and believers of this so-called conundrum fail to recognize the domino effect that lack of intellectual property rights sets. This onset a vicious cycle of which a common man becomes not only a part but also a major contributor. Apart from policy reasons there are moral arguments as well for granting larger protections to the creativity of the designers.
Prisoner’s dilemma
Application of the theory of prisoner’s dilemma to content creation, access, and copying that goes excessively in the fashion industry portrays a greater need to have intellectual protection[xx]. According to the theory, it will be prudent for an individual to copy the designs and creations belonging to others. However, its sub-optimal outcome will be demotivation for the designers to come up with new designs. Moore advocates on the premise of ‘self-interest and prudence’ and asserts that we should have a system that provides a scope for the designers to be creative and in which they can realize the investments made in the research and development.[xxi] According to him, copying ubiquitously will only lead to oppression of the will of designers to innovate.
Aristotelian-Randian approach
In Aristotle’s political-philosophical work The Politics, he states that “when everyone has a distinct interest, men will not complain of one another, and they will make more progress because everyone will be attending to his own business.”[xxii] He believed that property rights create a socially inducive society. Rand on the other hand believed that every man should have a right on the product of his mind. The designs and creativity of the fashion designers are the product of their mind and their property, which deserves protection by granting them legal rights. A legal system that induces greater creativity, provide an environment where society values the product of a human mind and its efforts, is the key to an ideal framework. The greater protection combined with legal sanction will only help break the chain of woes of illicit activities that go behind the smokescreen of fast-fashion and provide a safer environment to the creative minds to come forward with their creativity.
Conclusion
Keeping up with the fashion trends is indeed a drill of the 21st century that is followed religiously. However, what is worrisome is the ignorance of what it takes to make the latest trend available at a cheap price. There are the efforts of designers that go uncompensated for, the sustainability of the environment and undervalued life of human beings on the line, behind that dress worth just Rs. 900 in a Forever 21 store that brought a spark in your eyes and you had your heart set on ever since you spotted its look-alike while turning over those glossy pages of the latest issue of Vogue. Ignorance in this case is, therefore, anything but bliss. Stringent and uniform intellectual property law tailored for the fashion industry, educating the public, making brands more responsible and accountable for their actions by bringing them closer to the supply chain, are some of the measures that need to be adopted for detoxing the fashion industry that is though worth billions today, is highly contaminated. The circularity and concatenation of events, whose starting point is a lack of effective intellectual property regime for the fashion industry, needs to be broken and the designers need to be rewarded for their hard work. What’s required is to give serious consideration to Andrew Morgan’s (filmmaker and director of ‘The True Cost’) words, “What if we started by slowing down and not consuming so much stuff, just because it’s there and cheap and available. It’s amazing how that process makes sense financially, it makes sense ethically, it makes sense environmentally.” [xxiii]
[i] Siegle, Lucy. To Die for: Is Fashion Wearing out the World ? Fourth Estate, 2011.
[ii] “What Is Intellectual Property (IP)?” WIPO, www.wipo.int/about-ip/en/.
[iii] Elrod, Cassandra. “The Domino Effect: How Inadequate Intellectual Property Rights in the Fashion Industry Affect Global Sustainability.” Indiana Journal of Global Legal Studies, vol. 24, no. 2, 2017, p. 575., doi:10.2979/indjglolegstu.24.2.0575.
[iv] “Kanye West Is Fighting with a Fragrance Company Over Their Respective ‘YZY’ Trademarks.” The Fashion Law, 22 July 2020, www.thefashionlaw.com/amid-the-impending-yeezy-gap-tie-up-kanye-west-is-fighting-with-a-fragrance-co-over-their-respective-yzy-trademarks/.
[v] “In New Trademark Filing, Valentino Says Rockstud Pump Is Just as Famous as Louboutin’s Red Sole.” The Fashion Law, 11 Aug. 2020, www.thefashionlaw.com/valentino-says-rockstud-pump-is-just-as-famous-as-louboutins-red-sole/.
[vi] Elrod, Cassandra. “The Domino Effect: How Inadequate Intellectual Property Rights in the Fashion Industry Affect Global Sustainability.” Indiana Journal of Global Legal Studies, vol. 24, no. 2, 2017, p. 575., doi:10.2979/indjglolegstu.24.2.0575.
[vii] “Virgil Abloh’s Off-White Adds New Design Patents to Its Growing Arsenal of Interesting IP: Paperclip Jewelry.” The Fashion Law, 24 July 2020, www.thefashionlaw.com/virgil-ablohs-off-white-adds-new-design-patents-to-its-growing-arsenal-of-interesting-ip-paperclip-jewelry/.
[viii] “Fashion in IPR Mode: Rohit Bal, Anju Modi, Anita Dongre Copyright Designs as Plagiarism Spreads – Business News , Firstpost.” Firstpost, 1 Sept. 2017, www.firstpost.com/business/fashion-in-ipr-mode-rohit-bal-anju-modi-anita-dongre-copyright-designs-as-plagiarism-spreads-3996807.html.
[ix] “Fashion in IPR Mode: Rohit Bal, Anju Modi, Anita Dongre Copyright Designs as Plagiarism Spreads – Business News , Firstpost.” Firstpost, 1 Sept. 2017, www.firstpost.com/business/fashion-in-ipr-mode-rohit-bal-anju-modi-anita-dongre-copyright-designs-as-plagiarism-spreads-3996807.html.
[x] Borkar, Shubham. “Fashion Law In India – Intellectual Property – India.” Welcome to Mondaq, Khurana and Khurana, 19 Dec. 2018, www.mondaq.com/india/copyright/765358/fashion-law-in-india.
[xi] Elrod, Cassandra. “The Domino Effect: How Inadequate Intellectual Property Rights in the Fashion Industry Affect Global Sustainability.” Indiana Journal of Global Legal Studies, vol. 24, no. 2, 2017, p. 575., doi:10.2979/indjglolegstu.24.2.0575.
[xii] Elrod, Cassandra. “The Domino Effect: How Inadequate Intellectual Property Rights in the Fashion Industry Affect Global Sustainability.” Indiana Journal of Global Legal Studies, vol. 24, no. 2, 2017, p. 575., doi:10.2979/indjglolegstu.24.2.0575.
[xiii] “Fashion Industry Giants Keep Failing to Fix Labor Exploitation.” The Fashion Law, 28 July 2020, www.thefashionlaw.com/why-does-the-fashion-industry-keep-failing-to-fix-labor-exploitation-its-simple/.
[xiv] Nini, Jennifer. “32 Thought-Provoking Quotes About Ethical, Sustainable and Fast Fashion.” Eco Warrior Princess, 13 June 2019, ecowarriorprincess.net/2018/10/brilliant-quotes-about-ethical-sustainable-and-fast-fashion/.
[xv] Giambarrese, Nicole. “The Look for Less: A Survey of Intellectual Property Protections in the Fashion Industry.” Touro Law Review, vol. 26, no. 1, 2010, p.243-286. HeinOnline.
[xvi] Giambarrese, Nicole. “The Look for Less: A Survey of Intellectual Property Protections in the Fashion Industry.” Touro Law Review ,vol. 26, no. 1, 2010, p.243-286. HeinOnline.
[xvii] Giambarrese, Nicole. “The Look for Less: A Survey of Intellectual Property Protections in the Fashion Industry.” Touro Law Review ,vol. 26, no. 1, 2010, p.243-286. HeinOnline.
[xviii] Felice, Katherine B. “Fashioning a Solution for Design Piracy: Considering Intellectual Property Law in the Global Context of Fast Fashion.” Syracuse Journal of International Law and Commerce, vol. 39, no. 1, Fall 2011, p. 219-[ii]. HeinOnline.
[xix] Raustiala, Kal, and Christopher Sprigman. “The Piracy and Paradox: Innovation and Intellectual Property in Fashion Design.” Virginia Law Review, vol. 92, no. 8, December 2006, p. 1687-1778. HeinOnline.
[xx] Moore, Adam and Ken Himma, “Intellectual Property”, The Stanford Encyclopedia of Philosophy (Winter 2018 Edition), Edward N. Zalta (ed.), URL = <https://plato.stanford.edu/archives/win2018/entries/intellectual-property/>.
[xxi] Moore, Adam and Ken Himma, “Intellectual Property”, The Stanford Encyclopedia of Philosophy (Winter 2018 Edition), Edward N. Zalta (ed.), URL = <https://plato.stanford.edu/archives/win2018/entries/intellectual-property/>.
[xxii] Pytlak, Kaitlyn N. “The Devil Wears Fraud-a: An Aristotelian- Randian Approach to Intellectual Property Law in the Fashion Industry.” VIRGINIA SPORTS AND ENTERTAfNMENT LAW JOURNAL, vol. 15:2, no. Spring, 2016, pp. 273–305
[xxiii] Nini, Jennifer. “32 Thought-Provoking Quotes About Ethical, Sustainable and Fast Fashion.” Eco Warrior Princess, 13 June 2019, ecowarriorprincess.net/2018/10/brilliant-quotes-about-ethical-sustainable-and-fast-fashion/.