At the change of every season, everyone remotely interested in fashion looks forward to the arrivals of that month’s top lifestyle magazines like Vogue, Harper’s Bazaar, and Elle etc. The glossy pages highlighting the most recent furs, patterns, prints, and other fashion trends and styles seen all around on the world’s runways. However, the new season gets over just as quickly as it started, and the once-icon designs of haute couture are not trendy anymore. Owing to the Fashion Week coverage, film premieres, and television award shows, ensembles by designers are frequently replicated and offered to customers at a lower price—a practise labeled as “fast fashion.”^[1]

These copies of designs then become very readily available at clothing stores and retail shops before the original designers can even start putting their items on the market.^[2] Owing to the lack protection of intellectual property in the fashion industry, this cheaper method of obtaining quality goods is available for manufacturers and retailers. But who is actually footing the bill for this low-cost method of fashion? While many customers and shoppers may regard this tendency as a cheap and convenient way for younger demographic of customers to receive the newest haute fashion trends,^[3] the negative consequences of this instant gratification system of clothing are quite extensive.

I. Background on The Fashion Industry

The fashion and garment industry is a 1.2 trillion dollar market in global sector and a key source of business worldwide.^[4] Each year, nearly 250 billion dollars are spent on sales and production in the United States alone. ^[5] Around a total of 1.9 million people are employed in this sector.^[6] Many high-end designers take part in Fashion Weeks across the world to promote their new creations each season.

The concept of what we now know as “Fashion Week” can be traced back to the 1850s Paris, when a designer named Charles Frederick Worth decided to present a number of carefully selected designs of his creations to clients.^[7] Consequently, this became a trend followed by even several large department shops in New York City decades later, who began conducting their own shows to present their designs, in an effort to emulate the fashion shows in France to bring attention to their fashion lines.^[8] Because of the World War II in 1943 the American designers’ inaugural showcase, “Press Week” was staged in 1943 as a result of the difficulty to go to Paris to be inspired by the fashion there.^[9] This concept thus slowly evolved into an art form eventually included all aspects of the business throughout time (manufacturers, designers, journalists, consumers). Designers began exhibiting their collections and styles biannually beginning in the 1970s – in September and February, and this whole event gained its famous moniker of “New York Fashion Week.”^[10]

Fashion Week in New York is currently still held two times in a year, in addition to in Australia, London, Berlin, Istanbul, and Milan.^[11] The whole affair brings in a great number of celebrities, along with famously well-known sponsors such as Mercedes-Benz, and international designers from all across the globe. Providing an abundance of trends and styles, these fashions shows are a cornucopia for those in the industry, those who are individually obsessed with fashion, and lastly, retailers in the fast fashion business who are eager to rapidly reproduce runway designs and then collect revenue from selling them at a much cheaper range of prices. This is actually why fashion designs have gained a lot of quick and easy exposure in parts of the world, owing to technological advancements and social media applications.

1. Fast Fashion

In the middle of the rising infatuation with haute fashion against the background of not speaking up about protections that can be offered by better intellectual property laws, a new segment of the business called fast fashion has emerged. Customers scrolling through their social media, or the internet or their fashion magazines’ special editions can now just point to a most-loved fashion trend and locate an imitated, cheaper duplicate in their local retail store, quite often before the original version hits the market. The buyers’ need for overconsuming and instant satisfaction encourages the practice of purchasing the latest trends in fashion as soon as they can.^[12]

Therefore, to keep up with the change in fashion trends per season and their cyclical nature, retailers end up changing the merchandise of an entire store’s and increasing the number of seasons.^[13] For instance, there used to be only two primary seasons in the fashion calendar: Spring/Summer and Autumn/Winter. But as the designer realized the retailers’ trend to keep up with the seasons by frequently updating products, they added extra 3-5 mid-season showcases to the roster.^[14] Forever 21 and H&M are the kind of retail stores that get daily consignments of new stock to prolong the sentiment among buyers that trends are now “out of style” almost as quickly as they entered the selves.^[15] This is a deliberate process to make the consumers feel like the clothing they bought is no longer in trend just after a few wears.^[16]

As soon as designers showcase their clothing range for the season, fast fashion shops are immediately on their way to contact foreign manufacturers with intentions to replicate the garments, a procedure that has become exceedingly efficient development in technology and smart phones. Due to the fact that this method of mimicking is legal, there is no incentive for low-end retailers to actually pay the designers to produce a completely unique collection.^[17] These shops earn handsomely each quarter because to lower-quality materials, reduced design expenses, and consumer appeal.^[18] With products priced far cheaper than their competitors, and operating on a “high volume/low quality” business strategy, the biggest retail players in this field are Forever 21, Zara, and H&M.^[19]

The 2006 blockbuster movie The Devil Wears Prada,^[20] featuring Meryl Streep features an infamous belt scene where the editor of a prominent magazine explains the complexity behind the processes of manufacturing, design, production, etc. in the fashion industry and how it trickles down to local department stores to her oblivious assistant. She elaborates on how the cerulean sweater worn by her naïve assistant gained its particular coloring after being influenced by several high end designs at a previous year’s fashion week before it eventually filtered into whichever low end store it was bought from.

This scene illustrates the trickle-down of replication from premier designers, which then trickles down to low end wholesale establishments and, finally, the clearance stock to make place for new stock. This is a process made achievable due to the fashion industry’s shortfalls in intellectual property rights. Unbeknownst to many, this buyer driven process, although highly popular with the younger generation, has substantial environmental, human rights, and geopolitical implications.

II. Intellectual Property Rights in the Fashion Industry in India

Before we get into the worldwide implications of fast fashion, it’s vital to talk about the rights and protections under intellectual property laws that designers have. The fashion sector has long been ignored by intellectual property law, with tough opinions both for and against specific safeguards. Despite extensive efforts of the fashion industry, copyright protections afforded to the sector are still modest.^[21] As a result, designers have few options for preventing copying and even fewer options for retaliating if their designs are copied. This section of the essay will look at the several types of intellectual property protections used in this business, as well as some of the key arguments for and against them.

1. Protection under Design Act

Only registered designs are protected by Design Act. As a result, unregistered designs are ineligible for this act’s protection and advantages. The Design Act of 2000 protects new designs in the form of configuration, composition of colors or lines, shape, ornament, or patterns applied to any article, whether it is two dimensional or three dimensional or both, through any industrial process, and it must be a finished article that appeals to the eye and is judged solely by the eye.

Design rights like these provide 10 year protection for 10 years, which can be extended to 15 years for certain specific requirements. For the piracy of registered designs, the infringer shall be liable to pay the design’s registered proprietor a sum not exceeding Rs 25,000 which would be recoverable as a contract debt, or in case the proprietor chooses to bring a suit for the recovery of damages for any breach of right or an injunction against the repetition of it, damages may be awarded and the person may be restrained by injunction. The criteria for registering a work under the Design Act of 2000 are that it must be new and unpublished, and that the artist’s innovation must be reflected in the design.^[22]

2. Protection under Copyright Act

Copyright law protects an artist’s “original artistic work” as soon as it is expressed in a tangible medium. The copyright holder’s period of protection lasts for the rest of his or her life, plus an additional 60 years.

The Copyright Act and the Design Act overlap when it comes to design protection. According to section 15(1) of the Copyright Act, designs registered under the Design Act are not covered by the Copyright Act. As a result, once a garment design is registered under the Designs Act, it no longer falls under the Copyright Act and is protected under the Designs Act.

If a design (capable of being registered under the Designs Act) is not registered, it is protected by section 15(2) of the Copyright Act; nevertheless, the copyright protection will lapse if the design has been copied on more than 50 items by any industrial means.

3. Protection under Trademark Act and Geographical Indication Act

A trademark is defined as a mark capable of being conveyed visually and recognising one person’s products and services from another, and may include the shape of objects, their packaging, and colour combinations, according to Section 2(zb) of the Trademark Act of 1999. Any phrase, name, symbol, design, or colour combination that is used to differentiate and identify items in commerce is referred to as a trademark. The “distinctive Gucci GG Logo” and the “Gucci Trademark,” for example, distinguish Gucci bags and apparel from those made by other companies. A trademark may help a business maintain its prestige premium and therefore be quite valuable. Brand equity is highly valued by large fashion companies. Under trademark law, trade dress, such as size, shape, colour, packaging, and even sales strategy, is also protected.^[23]

The Delhi High Court granted damages in Louis Vuitton Malletier v. Atul Jaggi^[24] and others for infringing and passing off their renowned trademarks “LOUIS VUITTION” and “LV” by using identical marks. Designers may use trademark law to protect not only logos and brand names, but also particular product features. Burberry owns the trademarks “Burberry” and “Burberry unique Plaid,” for example.

The fourth schedule of the Geographical Indication Act classifies the goods that can be protected under the Act. The Geographical Indication Act of 1999, which respects India’s diversity in traditional knowledge and other indigenous creative forms, protects the current regime. Around 15 separate GIs for textiles have been recognised in India, including Kasturi Embroidery in Karnataka, Kutch Embroidery in Gujarat, and so on. Indian designers have relied significantly on previous traditional and indigenous patterns to make apparel, and they have recognised the need of preserving these designs from Fashion Piracy in the worldwide market.^[25]

4. Protection under Patent Act

Because creative compositions cannot be protected and the industry is primarily focused on the technical and innovative components, a patent may not immediately spring to mind when thinking of the fashion sector. However, the technology utilised to develop these designs or artistic works can be patented. Patents have been granted for the technology used to create CROCS shoes, wrinkle-free fabrics, UV filtering fire-resistant textiles, and water-repellent textiles. Novozymes, a Danish biotech company that specializes in enzymes and microorganisms, was the first to use enzymes in fabric treatment. Most denim companies were utilizing the technique under Novozymes’ license within three years after the company developed and patented a process for treating “stone washed” denim jeans with cellulase enzymes to give the fabric a weathered look.^[26]

From the date of filing, patent invention is protected for 14 years for design patents and 20 years for utility patents, after which it enters the public domain and can be utilised economically by anyone without breaking the patent. Though patent inventions are costly and time-consuming, they may be used to protect an innovation that can be utilised in the Fashion industry for a long time and will not become outdated if the concept is original and the technique can be replicated year after year. Louis Vuitton received six Design Patents in 2016, Bottega Venetta received three, while Balenciaga received two.^[27]

5. Protection under Trade Secrets and New Business Modules

Trade secrets include a list of major suppliers and/or customers, as well as the use of digital technologies for fashion design and logistical management across the whole value chain. In certain fashion businesses, core trade secrets are employed to protect computer-implemented, software-based business models that underpin an entire company strategy built on stealth and speed to provide a limited number of fashion products.

III. Human Rights and Labour Perspective

Another effect of the fast fashion sensation is an upsurge in forced labour. Most countries in the world lack robust labour laws, and those that do exist aren’t always followed. As a result of their overwork, employees are under constant exposure to toxic and deadly chemicals and dangerous working circumstances on a regular basis. According to one author, “less than 10% of what we’re wearing… was made in factories where people were paid a fair wage and worked in safe and legal conditions.”^[28] According to Nike’s 2010 Corporate Responsibility Report, the drive for always fresh designs leads to obligatory overtime at several international factories.^[29] Furthermore, when laborers are forced to work long shifts with no breaks, they are more likely to suffer accidents—a sobering actuality considering that many of these disasters might have been avoided if standard workplace and building norms had been created and followed.

The victims of these types of cheap labour exploitation are quite frequently the children. One such tale, of a government-sanctioned employment programme in China,^[30] was highlighted in the book Human Trafficking around the World: Hidden in Plain Sight.^[31] The programme used to send underage children who should be in school to factories for forced labour, where they were made to work long hours in highly unsafe workplace conditions.^[32] The children’s parents were compelled to use identity documentation that made their wards seem older than they were.^[33] The evident correlation between low pay for adult employees and the pervasiveness of child labour in nations where the adult workforce doesn’t earn sufficiently enough to cover their families’ basic requirements exacerbates the entire situation.^[34]

Regrettably, until an actual disaster occurs, the media seldom reports on the circumstances in overseas production factories. Overseas manufacturing sites are frequented by catastrophic incidents due to faulty wiring of electrical equipment and inadequate safety precautions, such as apparatus for firefighting or the total functioning exits in the buildings. A manufacturing building known as Rana Plaza collapsed in Bangladesh in 2013, killing over 1,100 factory employees and injuring at least 2,000 more.^[35] Subsequently, there were calls made for change and reform for a short period of time. The International Labor Rights Forum, group that advocates for human rights, has pushed merchants to contribute to the cost of safety measures in the factories of Bangladesh that well over 450 in number.^[36]

However, consumers quickly resumed their regular purchase habits when global attention diminished. A reform in copyright legislation affecting the fashion sector, on the other hand, might assist to mitigate the human rights breaches produced by the fast fashion issue. Better regulations in this sector, in particular, would reduce demand as well as the frequency with which retailers of fast fashion seek shipments from overseas manufacturers who abuse and exploit their labour to supply low-cost items with a faster turnover rate.

IV. Redefining Global Sustainability Through Intellectual Property

Although there are a few designers have made tiny improvements and small scale changes to reduce their contributions to hazardous working circumstances of the workers in garment factories,^[37] a change in the legislation is the only champion of this issue that can bring any real change. There is also the argument that customers have the potential to break the chain by refusing to buy products from fast fashion merchants, however these statements are based on a misunderstanding that it is the working class consumers that need to be held accountable. As a result, the burden should not be placed on customers, but on a business model designed to maximize profits for a select few. Yes, these manufacturers make apparel that is affordable to everyone. However, it is a poisonous system that is dependent on people overconsumption, with new fashions emerging in stores every week.^[38] As a result, the law is the only body with the potential and authority to substantially alter the worldwide disaster that fast fashion has produced.

Governments throughout the world need to enact legislations that mimics some of the safeguards provided to designers in other countries and expands intellectual property rights in order to mitigate the harsh repercussions of fast fashion as a long-term solution. The fashion sector has historically received more intellectual property protection from the European Union than from most other countries. Fashion designs in the European Union are protected by copyright in the form of unregistered and registered designs that are “novel” and contain “individual character.”^[39]

The EU Designs Protection Directive, provides this protection^[40] which establishes a uniform design rights framework that covers the complete garment.^[41] A “design,” according to the directive, is “the look of the entire or a part of a product deriving from the features of the contours, lines, colours, texture, ornamentation, or form of the product.”^[42] Consequently, fashion pieces mostly covered by the EU directive’s broad definition, making it simpler for designers in such nations to safeguard their unique work. If equivalent regulations would be there in other countries as well, particularly in nations like the United States, who are major players in the fast fashion sector, the worldwide implications of fashion design piracy would be greatly reduced.

The fashion industry has made several attempts to preserve designs through copyrights throughout the years, but all have failed. In 2012, the United States made the effort of launching the Innovative Design Protection Act.^[43] The main suggestion of this bill was to give fashion designs three years of copyright protection if they were “the outcome of the designer’s own creative work” and had a “unique, distinct, non-trivial, and non-utilitarian variation over past designs for similar categories of goods.”^[44] The ones who opposed the law did so on the basis of the “piracy paradox” argument.

The main claim of the paradox is that “piracy is ironically helpful to the fashion sector in the long term,” and is one of the explanations to why the fashion industry has not been granted copyright protection.^[45] According to the hypothesis, when the fashion industry has a low intellectual property environment where copying and replication lowers the prestige of new designs, and resultantly, consumers consistently seek new innovations.^[46] To sum up, this viewpoint basically states that if intellectual property rights were properly established to prohibit piracy, clothes would not lose its status as soon, which would lead to a fall in demand, and ultimately designers would lose motivation to come up with new designs.^[47]

Nonetheless, the fact that the fashion sector continues to be inventive and profitable despite a lack of intellectual property protection does not negate the necessity to safeguard it. The quarterly data appear to show that the industry is thriving regardless of rampant design copying, but those numbers do not tell the whole picture. When customers buy clothes in stores, they are usually unaware of how the item came to be there, and they don’t really care how it did either.

Environmentally speaking, the whole process of manufacture and dye of these pieces of clothing spilled hundreds of gallons of water and countless harmful chemicals into the environment. Toxins originating from the hazardous work settings, the human rights consequences of which are still unknown to most buyers. Retail corporations employ offshore manufacturing companies renowned for low-priced, exploitative labour and loose rules to meet the need for rapid turnaround and fresh designs. As a result, many foreign laborers are forced to work in hazardous conditions, with no prospect of reform in the near future.

While the fast fashion industry would not have been entirely derailed if regulations like the Innovative Design Protection Act had been approved, it would have suffered a substantial setback since copying of particular designs would be illegal and punishable by large fines. As a consequence, the environmental and human rights breaches that are now occurring since a result of the industry would be dramatically decreased, as these penalties and legal expenses would serve to prevent future copycats who have made millions profiteering from the fast fashion industry. It is obvious that the benefits of extending copyright protection surpass any of the objections made by its challengers. Concerns about a possible reduction in designer innovation or a rise in consumer garment expenses pale in comparison to the sustainability of the earth’s natural resources and the well-being of human laborers across the world.

Case Law regarding design copying

Star Athletica L.L.C. vs. Varsity Brands, Inc

In the case of Star Athletica L.L.C. v. Varsity Brands Inc., the issue was whether the clothes and uniforms are copyrightable under the Act. 

Facts of the case:

Star Athletica (Star) and Varsity Brands (Varsity) were in the business of marketing and selling uniforms and gears for athletic teams, including cheerleading squads. Varsity holds the copyright registration of three of its cheerleading uniforms. The designers of Varsity made a two-dimensional image of the uniforms for the clients to choose from. After Star published a catalog of cheerleading uniforms of the same design, Varsity sued, alleging infringement of the exclusive rights of Varsity to reproduce, display, and distribute their copy-righted design.

Since uniforms, as clothes “possess both utilitarian and aesthetic value”, they are useful articles. Consequently, their useful features – their “shape, style, cut, and dimensions” – could not be copyrighted. But, the design on the clothing’s fabric may receive copyright protection as a “pictorial, graphic, or sculptural (PGS) work only if the PGS and utilitarian aspects are separable. 

The aspect of Separability has two elements. As follows:

Separate identification

Independent Existence

Judge Moore first held that a design is copyrightable, through the Copyright Office, after following a valid copyright registration. Deference was due to the Office’s expertise and experience with useful article analyses, the training is given to its employees in applying the statute, and the “sound legal reasoning” of its interpretation; thus the District Court had erred in not deferring to the Copyrights Office’s determination.

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Written By – 
MS. Bhavita Varma