Presented by:NISHANT KEWALRAMANI

Portfolio ManagerBrain League IP Services Pvt. Ltd.

© Brain League IP Services Pvt. Ltd.

Piracy ParadoxPiracy Paradox

Copyright ProtectionCopyright Protection

Design ProtectionDesign Protection

Trademark ProtectionTrademark Protection

Patent ProtectionPatent Protection

Concept given by Kal Raustiala & Christopher Jon Sprigman

Piracy is a boon for the Fashion Industry.

The piracy paradox encompasses two concepts:

◦ Induced Obsolescence◦ Anchoring

Induced Obsolescence-◦ As design spreads its positional value grows.◦ Exhaustion by popularity paves way for new

designs.

Anchoring-◦ Latest trend communicated by flooding market.

COMBINATION OF TWO WORDS

•Idea/Expression Dichotomy

•Tangible Form

•Originality and Modicum of creativity

•Subject matter - Literary, Dramatic, Artistic, Musical, Cinematographic, Photographic and Sound Recording works.

•Term - Life plus 60 years

Applied art protected◦ Jewellery design◦ Patterns on clothes

Useful articles not protected◦ Clothing design not protected

Mazer v. Stein◦ Balinese statuettes used as base for lamps◦ Protected or not?◦ Test:

The aesthetic elements of an article can be separated from the utility or function of the article.

◦ Court said protectable as copyright.

Such severability not possible in case of cloth design but possible for patterns on clothes.

Mass production takes away copyright protection gets into design protection (50 articles in India)

Protects only expression

Modicum of creativity required

Substantial similarity not an objective test

Aesthetic appearance of an article

Term 15 years (10+5)

Ornamental features should be novel- bell bottoms example

Design- Copyright tussle

Ornamental characteristics to be separated from functional characteristics.

If the design is a direct result of the function then such a design is not protected.

Cloth designs??? Shoe and accessories designs???

Any indication that uniquely identifies a source of products

Distinguishing one source of goods from another

Consumers perspective

© Brain League IP Services Pvt. Ltd

Nike

Armani

Louis Vuitton

• Fanciful• Arbitrary• Suggestive• Descriptive• Generic

Abercrombie and Fitch Ladder

Confusing similarity◦ Likelihood of confusion◦ Louis Vuitton v. S Malik CS case- Delhi HC

Epi leather trademark

Dilution◦ Blurring◦ Tarnishment

Fair Use

Unique design or packaging of a product

Walmart sotres v. Samara Bros.◦ Children clothing- knockoff one piece seersucker

outfit

Secondary meaning required

Subject Matter - Inventions Term - 20 years

Requirements New Useful Non obviousRights - Use, Make, Sell, Offer for sale and

Import

Designs taken from traditional sources

Benefit sharing

FOR ANY QUERIES:

nishant@brainleague.com

THANK YOU!!!