On current challenges
Every industry needs three key components that give it the impetus of evolving into a significant and organised contributor to the economy, namely (i) education / R&D / skill training, (ii) association, (iii) government regulation / empowerment. The Indian fashion industry (albeit the status is more of a sub-sector of textiles) is relatively young from an organised perspective considering that its pioneering educational institutions and associations are less than three decades old, and being under the aegis of the ministry of textiles, its focus initially was on incentivising the evolution of the export ecosystem through quotas and focusing less on the domestic fashion industry.
With the entry of fashion professionals into the market through various government-aided and private institutions, it was evident that till the late 1990s these professional-turned-entrepreneurs were the better alternative to a handful of domestic brands. With the constant churn of apprentices out from each designer who needed new ideas, it also meant that when a design clicked, these young professional-turned-businesspersons commenced their own labels that inevitably conflicted with the designs of their mentors. This is where the Fashion Design Council of India (FDCI) could have played an instrumental role in evolving an unbiased and structured methodology of guiding the industry, the stakeholders and the government on how the broad framework of IPR could work in the Indian context where an atypical design meant the permutation and combination of silhouettes, and embroideries, prints and mediums could be copyrighted.
While a few designers have taken the initiative to copyright their designs, it was more out of compulsion as their designs were selling at less than 25–30 per cent of the price within a few weeks of their launch, courtesy the economies of scale offered by unorganised retailers and manufacturers.
The “copyright” ambiguity w.r.t the fashion industry lies around (i) awareness of the process, (ii) the cost of registration, enforcement and litigation, (iii) the ease of violations without significant repercussions, (iv) lack of an impartial regulator that can judiciously guide designers, (v) know-how on the cost benefits of leveraging design beyond the core product into licensing. I would say that this is the issue with fashion and all related design including accessories, furniture, interior and all lifestyle products. The easiest solution is to empower a regulator and get the government actively involved in assisting in the evolution of the fashion industry by discouraging the growth of the disorganised sector. This can happen by (i) incentivising and protection of what’s being designed in India, (ii) regulating the disorganised sector (manufacturing and retail), thereby increasing their costs of operation, (iii) establishing stringent entry barriers rather than letting sustenance barriers (e.g. working capital financing) kill the business later.
IPR documentation and leveraging it is a separate activity for every brand through their own IPR departments or if it is licensed to a third party. The fashion industry has to learn to go beyond the entrepreneur to start keeping a tab on the importance of design in every brand’s growth. Cross-border violations in specific markets have to be tackled proactively by either registering copyrights in those markets or reactively by going to courts and establishing grounds for injunction on usage of the design and if possible sue for damages by showing loss of business and goodwill.
On current laws
Fashion and related design comes as a sub-category under the office of the Deputy Controller of Patents & Designs which is under the Office of the Controller-General of Patents, Designs and Trademarks, which again is a sub-department in the Department of Industrial Policy & Promotion (DIPP) under the Ministry of Commerce and Industry, Government of India.
While conventionally all creative output including engineering is protected under the Indian Copyright Act, the government of India came out with the Designs Act, 2000 under which apparel can be registered under Class 02 of the Design Rules (and embroidery under Class 05). The Design Rules of 2001 were amended twice in 2008 and late 2014, wherein a design can be copyrighted for ten years with an extension of five years. The definition of a design under these rules meant new and original features of new shape, configuration, surface pattern, ornamentations and composition of lines or colours applied to articles which in the finished state appeal to and are judged solely by the eye. The precision and methodology of documentation has been templated so intricately that it borders on arduous only because after all that the implementation through education and enforcement is lackadaisical; hence, the audacious violations.
So far, only the large design players or those backed by private equity or strategic investors have been able to implement this internally, as copyright then becomes a significant component of the investment in the brand’s equity. There has to be a regulatory mechanism to assist the evolution and protection of new designs encouraging R&D even from those who cannot afford to pay for the documentation process. While the Design Amendment Rules did create a differential tariff structure based on size of the entity, the cost of enforcement and/or litigation is not different or subsidised though penalties if proven are heavy on those committing and abetting the piracy.
On future issues
Patents were generically divided as “product” and “process patents” depending on the industry. Design in engineering and product development has been over the years (including something as young as logo design) benchmarked, documented and templated using a slew of parameters that are visible e.g. geometry, colour and structure. Since fashion is cycle-based and there has always been trendsetting brands and followers, it is important that “fashion licensing” has to be institutionalised even with respect to enforcement as much as trademark protection.
With the proliferation of brands with the increase in the channels of retail from offline to online it is inevitable that these conflicts are also likely to increase without proper regulation, enforcement and awareness. Hence, it cannot be isolated to creating a framework in one country as even a simple category like Indian ethnicwear has been pirated, manufactured and distributed in countries with a large Indian diaspora. The need is for an empowered set of industry associations working cohesively within the framework of their respective governments who are constituents and signatories to the World Intellectual Property Organization (WIPO) ensuring that “design intellectual property” if documented, protected and leveraged can be monetised to encourage design players (albeit of any size) to grow like any mainstream fashion brand.
