PROTECT YOUR FASHION BUSINESS WITH IPR: IPR Club
Written by Mayank Panchpute [Institute of Law, Nirma University]
Starting a business in the fashion industry includes many aspects to be taken care of, from selecting unique and fresh styles to marketing your business to expand its reach. But in today’s quick-moving and highly competitive market in the fashion industry, where trends and new designs build or shatter any brand, protecting your brand under Intellectual Property Rights should be the paramount concern. Your innovative and original design, brand identity, and creative techniques are the key to success for a fashion entrepreneur. A business needs to have a deep knowledge of Intellectual Property Rights and Laws to safeguard the originality of its designs and hard work. This article sheds light on information about different IPRs and how effectively they can be used to protect your fashion design and idea. From copyright to the trademark, discover various strategic actions that will strengthen your fashion business and provide exclusive rights to your creations.
WHAT IS INTELLECTUAL PROPERTY (IP)?
World Intellectual Property Organization (WIPO) defines IP as, “Intellectual property (IP) refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names, and images used in commerce.”
TYPES OF INTELLECTUAL PROPERTY
Different types of Intellectual Property are defined under various Acts and Statutes.
- Copyright, under the Copyright Act of 1957
Copyright provides the creator of any original works of authorship, like- literary works, dramatic, musical, creative works, sound recordings, and cinematographic films (Section 13 of the Copyright Act, 1957). Section 14 of the said Act refers to the term “copyright” as the exclusive rights granted to the copyright owner. These rights include the right to adapt, reproduce, make copies, create copies, translate, and many others of any original work.
- Trademark, under the Trade Marks Act of 1999
Section 2 (1) (zb) of the Trade Marks Act defines a trademark as “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 colors.” Trademarks can be any phrase, word, design, or symbol. The said act can safeguard, register, and prevent unauthorized use of a trademark. Trademarks may include signatures, names, labels, headings, and others.
- Patents, under the Patents Act of 1970
A patent is an exclusive right granted by the Government, for an invention, to the inventor to prevent others from using, producing, and selling a design for a certain period, generally 20 years. An inventor with the patent right can exploit the patent, sue anyone for its infringement, and grant the license.
They are the secret of a trade that is in the knowledge of a limited number of people and has a commercial value. It can include any recipe, business model, formula, list of customers, software code, supply channels, and others. The unauthorized acquisition, use, or revelation of such secrets can be considered an unfair practice and a violation of trade secret protection.
HOW CAN IPRs BE USED IN THE FASHION BUSINESS?
Various types of Intellectual Property Rights can be used in different stages of a fashion business. A few are listed below-
Patents for distinctive manufacturing processes or technologies used for manufacturing fabrics can be granted. Patents can also be granted for novel materials or fabric composition. Patents can give your fashion business a competitive edge and the authority to sell or license your patented manufacturing process or fabric composition. Patents can prevent stealing your innovations, provide freedom of exclusivity, help enhance the brand’s monetary value and increase the profit margin.
The first step requires the inventor to disclose the invention to the professionals by signing the non-disclosure agreement. In the second step, a patentability search report is made based on extensive research by your professional. After this, an application has to be drafted by you or any professional’s help. Later the patent application is filed with appropriate forms with fees. Now the applicant is required to request the Indian Patent Office to examine their patent application (the patent office can raise some objections based on their examination, and these objections are to be responded to by the applicant). After a review of the application by the patent office, if the application meets all the requirements, the patent is granted.
Trademarks can help your fashion business to build a distinctive brand identity. By registering a trademark for your fashion brand’s name, logo, and slogan, you can differentiate your brand from the competition in the market. Doing this can create a recognizable mark that consumers associate with your brand. A distinct mark will help your brand develop a relationship of trust with your customers, enhancing your brand’s goodwill.
One can license the trademark of their brand to other businesses, which will generate an additional revenue stream.
First, you have to conduct a thorough trademark search before registration. This search is crucial to ensure uniqueness, identify potential competition, and calculate the risk of using the mark. After the trademark search, you must file a trademark registration application by filling out Form TM-A online or physically. Physically you can fill out the form at the Trademark Registry Office. The application must be submitted for a single mark in one or multiple classes. Along with the form, necessary documents and details need to be submitted. The affidavit and evidence of previous usage must be provided if the claim is of prior use.
After submitting the trademark application, it is examined by the Registrar, and a written examination report is given within 30 days. The applicant has to respond within 30 days with relevant defenses and evidence to overcome the objection, if any. If necessary, the Examiner may arrange a hearing after receiving the reply from the applicant. After the hearing, the mark gets accepted and published in the Trademark Journal. The application gets rejected if the Examiner is not fully satisfied while hearing. The trademark application is published in the Journal for four months. If the trademark of any other party gets infringed or the application is made in bad faith, the party can file a notice of opposition during this period of 4 months. A counter-statement, evidence, and hearing sessions follow this opposition. The applicant receives a registration certificate once all procedures are cleared, including the opposition.
Copyrights can benefit a fashion business by protecting its original clothing designs. You can copyright your unique patterns, prints, and artistic elements embodied in garments. Direct copy or reproduction of your designs without prior consent can be prevented using copyright. Copyright provides you exclusive rights over your creation. It can also prevent unauthorized use of any written content, images, videos, or any other digital assets your business produces. Copyright will ensure an unhindered social media presence resulting in the company’s expansion. Any literature work, like any poetry or song relating to your brand, can also be protected via copyright.
For registering some work for copyright, the author or the authorized agent has to apply to each work with the copyright office. The application can be filled out physically or through the official website copyright.gov.in. A relevant fee has to be paid based on the type of work. Later, the Registrar issues a daily number, following which a 30-day waiting period is given for any objection. If no objection is found, the applicant can proceed. If any objections or discrepancies are found, a letter is set for resolution and can result in hearings. If objections are rejected, the application proceeds, or else it is rejected.
In the final stage, the Registrar can ask for additional documents for registration. When satisfied, the Registrar enters details in a register and issues a registration certificate. The registration process is concluded by giving the Extracts of the Register of Copyrights (ROC).
REMEDIES PROVIDED WHEN IPRs ARE INFRINGED
If there is a patent infringement, a suit can be filed under the Patents Act, of 1970, within three years from the date of the breach (as per the Limitation Act of 19630). A temporary injunction can be granted at the initial stage of the suit. A permanent injunction will be invoked when the defendant is found guilty of the infringement. Damages or accounts of profits can also be awarded to the plaintiff.
Trademark infringement can result in both civil and criminal actions. Criminal complaints can be filed under the Trademark Act of 1999. Trademarks can lead to direct prosecution and seizures conducted by the court. Civil action can proceed on the status of registration of the trademark. There is no limitation period for the infringement of a trademark. Remedies for the infringement include damages, injunctions, the appointment of local commissioners, and customs intervention. Through court application, a temporary injunction can also be sought.
When copyright is infringed, the copyright owners or the author have a right to pursue civil and criminal action. Damages, injunctions, and accounts can be asked through civil suits. Criminal suits can be filed in specific courts. Companies/ LLPs and individuals can be held liable for infringement.
Protecting the fashion business using Intellectual Property Rights (IPRs) is essential for a significant market presence. IPRs safeguard your creative assets, market position, and brand identity. You can have exclusive rights over your innovative designs, logos, branding elements, and original content by leveraging patents, trademarks, and copyrights. These rights provide legal protection for your creation and help you enhance your business’s value, attract investments, and facilitate collaborations. It is essential to know about specific application processes and requirements of IPR in the fashion industry. You can consult with experts to ensure comprehensive protection.