Intellectual activity is the functioning of mind by various methods and measures. Intellectual activity in discoveries, science, creation, or industry gives an emergence to legal rights i.e. Intellectual Property Rights. Creativity in the Fashion business is also the product of the intellectual activity of mind, protected under Trademark. It becomes imperative for any brand or company, to protect the uniqueness of their products. This article throws light on the need for Trademarks in the glamour industry.
There are many brands in the world which have a major influence on masses, to purchase and show off to the rest of the world. Brands like VERSACE, KARL LAGERFELD or YEEZY are not only for utility but also due to the brand value it has. However, such brands are way too expensive, thus making it tough for buyers to purchase products at such high prices. This is when the buyers go for counterfeit goods and fake products which are inferior in quality, sold under another’s brand name and without the authorization of the brand. Counterfeit products damage brands financially and its reputation apart from causing loss to the economy of the country as well. The fashion business is pressed to be unique in its creation simultaneously surrounded by a challenge to not be defeated by its competitors. To preserve such intellectual creation, the law gives them the exclusive rights to protect the creation from being exploited and to gain from it financially. Trademarks are the general route to do so.
Trademarks and service symbols/marks are used to a producer’s or a manufacturer’s goods and services to differentiate them in the trade place–a treasured business apparatus, in some cases. A trademark blocks another individual from delivering homogeneous goods or amenities bewilderingly like others. If there is no registration of the trademark, the person may be stopped from utilizing it by someone who has. It also includes other types of the mark such as labels, collective marks, and certification symbols. Trademarks martialize on the physical good or its covering. Trademark also plays an important part in the fashion business by safeguarding a label name, representation, pattern, logos, and characteristics of the fashion apparel that are adept of differentiating such apparels from that of the rest. The prime objectives of the trademark law in the fashion business are on particular markets. It aims at three major aspects:
- To win over buyer’s curiosity.
- Benefit of trademark possessor, and.
- Business rivals.
The trademark possessors must create their products or goods in an appealing way or to advertise their goods in various best ways to get attention from consumers in the market, full of alternatives. For safeguarding the label, brand, presentation, logo and symbol of the commodities or goods they must register their products under the trademark law.
Step by Step Procedure to register trademark in India – https://lawyog.com/step-by-step-procedure-for-registration-of-trademark-in-india/
Trademark Laws in India
Trademark Act 1940 was the foremost enactment law on Trademarks in India. Before this Act, Trademark was regulated by common law. Recording/registering a Trademark was attained by rendering a statement to ownership under the Indian Registration Act 1908. The abovementioned statute was altered by Trademarks Amendment Act 1943. Earlier the Trademark registry was a segment of the patent office, which was down the line severed to add up a different trademark registry. Thereafter the Act was altered by the Trademarks Amendment Act 1946.
The Trademark Act 1940 was displaced by the Trade and Merchandise Act 1958. The Trade and Merchandise Act 1958 was enforced on 25th November 1959. Down the line, certain slight changes were applied, revoking and amending Act 1960.
The Trade and Merchandise Act, 1958 was reviewed by a brand-new Trademark Act 1999. The novel operation of the brand-new Trademark Act initiated with an aspiration to ameliorate the Trademark Act to flourish the economy at a speedy pace. The purpose is to seek expansion in business and trade operations, globalization of business and trade. The brand-new bill preceded both the houses which were assented by the President and set off a brand-new Act called Trademarks Act 1999.
The Trademark Act 1999 is regulated by Trademark Rules 2002, it got enforced on 15th September of 2003. The Indian Trademark is now fully compatible with International standards of TRIPS Agreement.
India has a legal duty under the TRIPS Agreement for protection of trademarks. A trademark which is defined under Section 2 (zb) of the Trade Marks Act, 1999 as, “trademark means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include the shape of goods, their packaging and combination of colours.”
The Trademarks Act states for recognition of the concept of well-known marks, recording of service marks, increasing the term of registration of a trademark to ten years as well as filing of multiclass applications, etc.
Section 135 of the Trademarks Act upholds both contraventions as well as passing off operations. The Indian judiciary has been dynamic in the safeguarding of trademarks. The trademark law renders phenomenal immunity to trademarks that are ‘well known’ and protects them from the contravention or passing off. The Trademarks Registry acknowledges well-known trademarks in India found on global, domestic, and cross-border reputation.
The Trademarks Act 1999 safeguards well-known trademarks in twin ways:
- Measures against the registration of homogenous symbols/ marks; and
- Measures against the exploitation of the well-known symbols/marks.
Trademarks and World of Fashion
Influential fashion studios, companies or houses hold in high esteem of their brand worth. Most advance welding with their consumers through their label names and passionately safeguard these through registration/recording of trademarks. Many exclusive articles are exhausted by vendors, which are forged, that simply transgress trademarks. From time to time, a fashion pattern will evidently assimilate a trademark to a limit that the mark becomes a component of the design. Gucci purported that Guess duplicated, green-red-green shade swathe/stripe design. Moreover, Gucci asserted that Guess duplicated its “Quatro G” design of interlinked G’s. In company with the agreement raised above, the judge granted a perpetual injunction, which states that Guess is prohibited from applying the “Quatro G” design, the green-red-green shade design, and other square G symbols/marks on Guess produce.
The Louis Vuitton Monochromic handbags with the letters LV attached are immensely well-liked, the sole cause being that these extravagant bags are distinctly detectable. The agenda is for people to observe the bag from a great distance, not only by the label written on it but from the logo of LV on it. For such commodities, the logo is a fragment of the pattern, and thus the trademark renders crucial safeguard against pattern duplication.
Trademarks will safeguard the alligators, penguins, and little polo ponies. But for the larger part of clothing pieces, the trademarks are either interior of the garment or finely exhibited on compact parts such as buttons. Hence for most clothing, trademarks do not prevent pattern duplication.
Adidas has ferociously safeguarded the stripe pattern with innumerable lawsuits and trademark resistances against market chains and fashioners, fluctuating from Marc Jacobs to Forever21. Adidas, the holding enterprise for the Adidas Group, has a recorded/registered trademark for their famous Three Stripes pattern. Not long ago, the German activewear house brought legal action against Puma over this trademark.
A fashioner or a celebrity can aid people to create the link between the brand value and good perception of the brand by itself. That is why it is not unusual to observe famous personalities with their name recorded as a symbol in line to utilize and authorize their name to advertise a commodity or a creation.
Trade Dress Safeguard
Trademark fashioners can utilize trademark law to safeguard not only logos, labels, and brand names, but also other differentiable characteristics of a commodity such as colour, shape, combinations, size, graphics, texture, or even particular marketing techniques.
It was originally for commodity covers like Tiffany’s little “1837 Blue” boxes. The Louboutin red shoe pad are fragments of the verified commodity but even without pulling off the shoe, or gazing inside and noticing the red sole, it’s Louboutin; therefore, that red shoe pad or sole can indicate a trademark.
Another specimen of trade dress that includes the complete product is the Birkin, or Hermès. They moved ahead to register the complete handbag. British fashion company, Burberry has trademark rights in both the trademark Burberry and the Burberry check style.
Even though patterns are given preservation in the kind of trademarks, patents and copyrights, the fashion business has encountered countless obstacles striving to attain this safeguard. The law does not want to hold out the preservation of anything that addresses a functional aim and causes impediments to further innovation. Ordinarily, the observation is apparel may look exclusive and trendy, but its main utility is to cover us up.
At present, intellectual property laws are partly to be accused for the inadequacy of good preservation for fashion styles and patterns. The fashion business has also ignored to follow all paths of intellectual property rights. Many big brand names safeguard their trademarks but ignore other segments of their patterns that may also be preserved. The short life span of a commodity as fashion mania come and go has demotivated fashion companies from chasing all ways and procedures of pattern protection. However, some styles and trends resided for eternity and are fresh for ages. If a pattern proceeds and the designer/fashioner has not attained preservation in the right span of time, violators will be able to duplicate their patterns. In a life long, unscrupulous products can threaten the brand’s image and goodwill in the form of inventory, existing portfolio, loss of value to their new designs and lost sales inventory. Intellectual property rights can raise income through commercialization of existing and new products, licenses, and sales. In the present tough competition around the fashion industry, intellectual property rights can render a competitive benefit for the fashion business to further invention and innovative expression.
- Narayanan, P. (2004). Law of Trade Marks and Passing off (6th ed.). Kolkata: Eastern Law House. p. 3. ISBN 9788171772322.
- Preamble, Trade Marks Act, 1999
Student, Chanakya National Law University Patna
Nitisha Bhardwaj is a writer, speaker, and researcher. She has an affinity for International Aviation and Corporate Law. She is a creative thinker and seeks for balance. For any Clarifications, feedback, and suggestion, you can reach her at Nitishabhardwaj1@gmail.com