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Fashion Industry and Intellectual
Property Rights
Presented by
Poorvi Chothani, Esq.LawQuest, Mumbai
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The Burgeoning Fashion Industry in India
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Issues Facing the Fashion Industry
IP Development
IP Ownership
IP Protection
IP Management
IP Valuation
IP Dilution Fragmented Marketing Initiatives
Data Protection
Lack of enforcement of contracts
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The Fashion Industry
Developments In The Fashion Industry
Technological Advancements
Increased Competition
Advancement In IP More Choices For The
Consumers
Sustainable Development
Changes In R & D Strategies
Protection Of Rights In Innovative Procedures,Research And Goals Achieved
Move From Physical Assets To IntangibleAssets
Changes In Legislation
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IPRs - An Exclusive, Time Bound,
Right Over A Creation
IP rights for the Fashion Industry
Designs Copyrights
Trade Marks
Patents
Domain Names
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Some Elements that Require
Protection in the Fashion Industry
Designs
Fabrics
Garments
Accessories
Technology
Embellishments Traditional Arts
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IPR and The Fashion Industry
How To Protect Your Brand What Makes A Good Trade Mark
What Can A Brand Consist Of
Selective Patent Protection
How Long Does IP Protection Last
How To Protect The Design Of Goods
The Difference Between RegisteredAnd Unregistered Designs
The Benefits Of Registered DesignProtection
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International Treaties
India is a member or signatory of several international IPRrelated organisations and conventions:
World Trade Organization (WTO)TRIPS
Word Intellectual Property Organisation (WIPO)
Paris Convention for the protection of IndustrialProperty
Patent Co-operation Treaty (PCT)
Budapest Treaty
Singapore Treaty on the Law of Trademarks
Madrid Protocol on Trademarks
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The World Trade Organization (WTO)
The Trade Related Aspects of Intellectual Property Rights (TRIPS)Agreement
All Signatory countries need to ensure Intellectual Property Rights (IPR)Protection within their jurisdiction.
Intellectual Property
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Intellectual Property Rights (IPR)
Intellectual property is classified into-
Patents
Industrial Designs Trade Marks
Copyright
Geographical Indications
Layout Designs of Integrated Circuits
Protection of Undisclosed Information or Trade Secrets
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Relevant Indian Laws*
The Patents Act, 1970
The Copyright Act, 1957
The Trademark Act, 1999
The Designs Act, 2000
The Geographical Indications of Goods(Registration & Protection) Act, 1999
*As amended from time to time and with their supporting
rules.
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The intellectual property rights like logos, names and labels are
perotected by Trademark Law
Protection of Logos
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Trademarks
A Trademark is a means of identification ofgoods or services, a symbol which anorganisation or person wises the consumer to
identify with its goods or services as opposed tothat of the competitor
Registration of Trademarks is governed by TheTrademarks Act, 1999
Protects logos and brand names, and may alsoapply to a distinctive way of stitching, pattern,trade dress, etc.
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Trademarks and Service Marks
A Trademark` May Consist Of One or a Combination of the following:
A Stylized Word
Invented Word or Logo
Signature
Device
Letter
Numeral, Brand, Heading, Label
Name Written In A Particular Style
The Shape Of Goods Other Than Those For Which A Mark Is ProposedTo Be Used, Or Any Combination Thereof
Trade Dress the 1999 amendment protects shape of goods andcombination of colour
Service marks that are used by their owners to identify services
The Trademark to be registered should not be deceptively similar to an existingmark of another person and not be expressly prohibited under the Act.
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A Trademarks Criteria for Registration
Should Be
Distinctive,
Capable Of Graphical Representation,
Capable Of Distinguishing The Goods Or ServicesAs Originating From A Particular Source FromThat Of Other Similar Goods And That Mark
Should Not Be Functional In Nature
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Duration of a Trademark
Valid for ten years
May be renewed for further period often years
Failure to use a registered trademarkfor a continuous period of five years
may result in cancellation
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Infringement
The owner has the right to sue in the courts oflaw for infringement of the trade mark
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Evidence of Trademark Registration
SEAL
Pepsi and Coke
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http://inventors.about.com/library/inventors/blpepsi.htmhttp://inventors.about.com/library/inventors/blcocacola.htmhttp://www.abc.net.au/science/news/stories/s1610919.htmhttp://inventors.about.com/library/inventors/blcocacola.htmhttp://inventors.about.com/library/inventors/blpepsi.htm -
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Trademarks and the Internet
Domain NamesImportance Of Maintaining Similarity
Global Impact Of Trademarks
Domain Name DisputesClaimants Reliance On TrademarkOwnership
Misdirection Of Search Engines
Dilution Of Famous MarksMalafide Use, Parody And Commentary
Trademark Infringement And/Or Passing Off (Misrepresentation) InMultiple Jurisdictions
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Copyright Subsists In
Copyright is an exclusive right granted to the author of anoriginal work for a limited period of time with the right toexploit that right.
Artistic Works
Original Literary
Computer Software
Dramatic Work
Musical Works
Cinematographic Films
Photographs
Sound Recordings etc.
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Copyright
Protection for designs, original artistic
works such as sketches and patterns
Does not protect ideas, information, styles,
techniques and names
Copyright law does not protect the "reverseengineering" of a garment or designs
created independently
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Copyright Notice
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or
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This copyright notice must be placed insuch way as to give reasonable notice ofthe claim to copyright.
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http://www.coroflot.com/public/individual_file.asp?from_url=true&sort_by=1&portfolio_id=591469&individual_id=76339
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Bundle of RightsCopyright gives the author of a literary,
dramatic or musical work, the right to:
Reproduce the work in any material formincluding the storing of it in any medium byelectronic means
Issue and Distribute Copies
Perform the work or Communicate the work
Make Films or Sound Recordings
Make Translations and/or Adaptations and
all the above rights for such adaptations Publicly Display the Work
Transfer any of these rights, either as abundle or individually to another party
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Duration of Copyrights
Literary and Artistic Works: 60 years from the deathof the author
(Calculated from the calendar year following the yearof death)
Copyright is subject to certain limitations
Statutory Licensing
Fair Use Exceptions Compulsory Licensing
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Infringement and Plagiarism
Use of Copyrighted Material Without a License orRight or in Contravention of the License
Injunctive Relief
May be eligible for damages
PenaltyImprisonment of 7 days to 3 yearsFines from Rs. 50,000/- to 2,00,000/
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Designs under the Designs Act
http://www.ditto.com
New or original, not previously published or used in any
country
Relate to features of shape
Configuration, pattern or ornamentation applied or
applicable to an article Features should appeal to and should be judged solely
by the eye
Design must appear and should be visible on the
finished article, for which it is meant
Should not include any Trademark orproperty mark orartistic works as defined under the Copyright Act, 1957
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Designs
Design is a visual appearance of a particularproduct
Grants a right to sell, use and assign the design formanufacturing
Design must be distinctive, new and easilyidentifiable
Design must not be used, published or
disseminated in any way prior to DesignRegistration
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Advantage of Designs Rights
Gives the owner an exclusive right againstunauthorised copying or imitation of thedesign by third parties
Protecting industrial designs helpseconomic development, by encouragingcreativity in the industrial andmanufacturing sectors, as well as intraditional arts and crafts
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http://www.fashionclub.com/career-studio/sketchbook/articles/sept-2005/virtual-fashion-student.shtm
Season Hall
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Designs Ineligible for Protections Designs of industrial plans, layouts and
installations are not registrable under the Act
Painting, sculptures and the like which are notproduced in bulk by any industrial process
Stamps, labels, tokens, cards
An artistic work as defined under the Copyright Act,1957
"Artistic works" means: -
A painting, a sculpture, a drawing (including adiagram, map, chart or plan) on engraving or aphotograph, whether or not such work possessesartistic quality. An work of architecture and anyother work of artistic craftsmanship.
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http://www.fashionclub.com/career-studio/sketchbook/articles/sept-2005/virtual-fashion-
student.shtmAlbert Ng
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Duration
Initially ten years from the date of
registration, or ten years from thepriority date
May be extended by a further period
of 5 years
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http://www.fashionclub.com/career-studio/sketchbook/articles/sept-2005/virtual-fashion-student.shtm
Elias Luna
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Piracy, Infringement and
Punishment
Piracy of a design means the application of a design or its imitation to any articlebelonging to class of articles in which the design has been registered for thecommercial purpose without the written consent of the registered proprietor
In case of infringement, the person is liable for every offence to pay a sum notexceeding Rs. 25,000/- to the registered proprietor subject to a maximum of Rs.50,000/- recoverable as contract debt in respect of any one design
The registered proprietor may bring a suit for the recovery of the damages for anysuch contravention and for injunction against repetition of the same
Total sum recoverable shall not exceed Rs. 50,000/- as contract debt, as stated in
Section 22(2)(a). The suit for infringement, recovery of damage etc. should not befiled in any court below the court of District Judge.
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Infringement and Plagiarism
Unauthorized commercial use ofa registered design orits imitation to any article for the commercial
purpose
May be eligible for damages
Penalty or Contractual Damages- Rs. 25,000/- to Rs.50,000/
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Copyright and Designs Overlap
Copyright
Vs.
Design Protection
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Patent Protection
Protects inventions
Aninvention means a new product orprocess involvingan inventive step and capable ofindustrial application
(S. 2(1)(j))
Granted to Innovative, Novel Products and Processes
Designers may be able to patent new, inventive anduseful devices.Artistic creations cannot be patented andtherefore patents are not widely adopted by designersfrom fashion industry.
Inventions by Buck Weimer and CSIRO which controlodours and body temperature respectively in garmentshave been successfully patented in the US
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Exclusive Rights of a Patentee
Monopolistic Right to exploit the patent
Ability to prevent others from using or exploiting the
patent
Exclude others from using or exploiting the patent
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Patented Diamond Setting - USPTO
U.S. Patent Mar 20, 2007
US D538,700 S
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Patented Handbag Designs - USPTO
US Patent
Apr. 27, 2004 US D 488,925 S
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Patents and Fashion Industry
Patent law has limited usage in the fashion designs, because:
The patent standard of novelty cannot be met by mostdesigns
Patent application process is very slowly to be meaningful for
most fashion designs
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Infringement and Penalties
Give Notice To Infringing Party
A Suit May Be Filed In An Appropriate District Court
Falsification of Registration Entries - imprisonment up to 2 yearsor with fine or with both. (Amount of the fine is not specified).
Deals with unauthorized claim of patent rights punishable withpunishable with fine that may extend to Rs.1,00,000/-.
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Geographical Indications of Goods
(Registration & Protection) Act, 1999
A Geographical Indication is a public property belonging
to the producers of the concerned goods. It shall not be
subject matter of assignment, transmission, licensing,pledge, mortgage or such other agreement
Validity10 years and can be renewed
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Examples of GI Protection and Fashion
Pochampally Ikkat (Andhra Pradesh)
Patola of Patan (Gujarat)
Kolhapuri Chappals (Maharashtra)
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Contracts and Fashion
IP Licensing Agreements
Distributor Agreements
Photographs and Agreements
Modeling agreements
Work for Hire
Non-disclosure and non-compete contracts withemployees
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Going Forward
Creativity Is Key To Success In ThisIndustry
It Is Essential To Protect And To EnforceCreativity and Ensuing IntellectualProperty Rights
Necessary To Increase Awareness OfRights and Penalties for Infringement
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