Fashion exists in myriad forms in everyone’s life; it is a multilingual concept that speaks for each individual in its own way. As an industry it has turned into a global phenomenon treated with utmost regard and principles- over centuries
“Fashion is not something that exists in dresses only. Fashion is in the sky, in the street. Fashion has to do with ideas, the way we live, what is happening.“-COCO CHANEL
Fashion exists in myriad forms in everyone’s life; it is a multilingual concept that speaks for each individual in its own way. As an industry it has turned into a global phenomenon treated with utmost regard and principles- over centuries, the definition of fashion has taken various shapes and forms and catered to its audience in a platter. With rampant expansion of the industry, more and more people are willing to pay through their nose, to look like their favourite movie star or their favourite artist; however, with growing interest of people towards the world of fashion and an abundance of design ideas, designers faced problems with new found obstacles never experienced in the past.
This is where fashion law plays its part. As previously mentioned, with time, the fashion industry had to deal with challenges that required set rules and norms, in order to avoid chaos. The fashion industry not only deals with apparel but is also inclusive of the stream of footwear, jewelry, textile, handloom, cosmetics, accessories, modeling, etc. Therefore consequently, an industry with a long chain of infrastructure requires guaranteed laws governing it, for conducting effective businesses smoothly and to grow bigger.
The fashion industry in India did not gain sufficient recognition until recently, therefore, the structure of fashion laws in the country is yet to stem out. However, fashion law as a field of study and profession has comparatively flourished in the west. Fashion industry being a massive contributor to economies, concerns every individual of a country, after all, even those who disregard fashion, get up every day to choose their outfits- fashion is just a piece of clothing we use you hide our naked body.
The ambit of fashion law deals with intellectual property along with other fields such as that of labour and real estate law. Other fundamental issues included in the field of fashion law are those related to business and finance, international trade, consumer cultures, media, textile production, cosmetics, modeling, etc. These issues have arisen throughout the course of history of the fashion industry, be it in case of designs and looks created for artists, by designers that limits others from purchasing or wearing those garments, to problems related to trade restrictions between brands or other intellectual property protection related issues.
Over the years, many have fallen victim to the cruel operations of this industry- from budding designers who have been betrayed in the name of guidance or models who work for brands, face constant criticism and misdemeanor, to garment workers who operate for supply chains of multinational brands, are forced to live a life of poverty and labour, where their efforts are unacknowledged. This is a gist of what the industry beholds; as a prerequisite to gain insights of the fashion world, one must understand the dark side of its functionality, where lies a less utilitarian psyche of tricking people into believing in a standard definition of fashion.
This article shall solely focus on the need of the hour, fashion laws in India. Across the globe, fashion law is a growing niche in the legal industry, for example, Ms. Susan Scafidi, was the first professor to introduce a course in Fashion Law at Fordham Law School, New York, as a matter of fact, Fordham is the only institute who offers their expertise for this course and runs an independent nonprofit by the name of ‘Fashion Law Institute’ for those willing to pursue degrees of Jurist Doctor as well as LL.M. However, in India a full time graduation course is not available but Indian Institute of Fashion & Design, based in Chandigarh offers courses related to ‘Fashion Retail Law’ and Diploma in ‘Fashion & Law.’
Therefore, this article wishes to concerns itself in implicating the need for a concise area of law dedicated to this industry, namely ‘fashion law’, which covers all requirements efficiently i.e. broadly governs problems related to retail, business, manufacturing, IP, labour, modeling, financing, international trade, marketing, corporate structure, etc. However, this article will only talk about the major issues related to exploitation of IP protection and labour laws in this industry.
IP LAWS: ARMOUR OF THE FASHION WORLD
The mantra of the fashion industry is to create new ideas of designs and innovations every day. Due to the cut throat competition that prevails throughout this industry, one must always be on their toes to prove themselves worthy enough to stay in the market. Therefore, with upcoming novel innovations like colour changing wearable techs, self-adjusting shirts and auto-drying jackets, consumer base is often explored in context of its choice. On the other hand, the fashion industry’s thriving creativity streak also creates a gap in the form of affordability- this is where counterfeit products of the original come into the market.
India, a nation full of ‘third copy’ street markets, is witness to a bunch of piracy running businesses off duplicate products. Unlike other countries, such as France, where laws are strict enough to even hold the buyer of duplicate goods liable of causing damage to a designers’ product, India only procures for designers to take their infringers to court and claim damages. This is where Intellectual Property plays its part.
Everyone has heard of the famous designer, Sabyasachi Mukherjee’s brand label, it is easy to decipher from its ‘tiger’ logo, or Christian Louboutin’s brand of red sole footwear, these are trademarks of these designers that help distinguish them from their competition. However, the Indian fashion industry faces challenges when it comes to protecting their work of creation due to the lack of knowledge towards intellectual property protection in the country. As the Indian fashion industry spreads its wings on global platforms, the need of the hour is for designers and brand houses to protect their creations.
The Copyrights Act, 1957 acknowledges artistic work in various forms- from drawings (both two and three dimensional), sketches, structures, etc., however, Section 15 of the Copyright Act[1] restricts the registration of those designs that are previously registered under the Designs Act, 2000. So was the case in ‘Rajesh Masrani v. Tahiliani Design Private Limited’[2], where the High Court of Delhi held that the work of the designer in question was ‘artistic’ in nature, and must be afforded protection under the Indian IP law.
Therefore, the fashion industry can always seek help in the form of intellectual property protection with creative works such as artistic works are protected under the Indian Copyright Act, 1957 whereas, the Designs Act, 2000 assists in registering designs which are applied to a specific class of articles. Over the years some Indian fashion houses and fashion designers have been slapped with infringement lawsuits, where a few others have been successful in dragging their infringer to court.
To begin with a famous Indian case of ‘Ritika Apparels v Biba where the conflict between copyrights and designs were resolved- the plaintiff took to court stating that the defendants had copied their design from one of their creations and further reproduced and sold the product in their own name i.e. Biba. However, the defendants took refuge of Section 15(2) of the Copyright Act, 1957[3] further claiming that the plaintiff party had lost their right over their product due to the production of more than fifty numbers of products via industrial production, therefore not amounting to copyright infringement i.e. the design created by Ritika apparels was not previously registered under the Designs Act, 2000 due to which the plaintiff only had rights over producing products with that particular design not more than 50 in number. Due the plaintiff’s lack of knowledge of laws governing intellectual property in the nation, landed BIBA out of liability.
As an example of how the fashion industry in the West is fully secure i.e. how designers are rightly aware of their rights to protect their artistic works such as drawings, sketches, paintings, designs, detailing, etc. in order to save their legacy and also to prevent any damage to their business. Such is the case of ‘Christian Louboutin v Kamal Footwear & Anr’[4], where the world renowned brand of red sole shoes that is famous amongst celebrities and the whole fashion industry, invariably also creates a huge craze for the customers who wish to follow their favourite actor’s or artist’s style of fashion, needless to say, those red sole high heels cost a fortune. Christian Louboutin’s footwear designs is more of a luxury brand as it steers clear of the reach of a majority of consumers. The Louboutin brand held a reputation and goodwill in the fashion industry way before it entered into the Indian market, however, the brand was faced with a challenge when the defendants started producing counterfeit products of the brand and sold them at a cheaper value, with different patterns, designs and colours but the soles of the footwear were red. When Christian Louboutin (plaintiff) took the case to court seeking a permanent injuction and compensation from the defendants selling red sole shoes from two outlets, the court ruled in favour of the plaintiff as the brands products were protected under trademark laws. The Delhi High Court in their judgment made the defendants pay a hefty amount as damages and brought a permanent injuction on the defendants for carrying out trade of counterfeit products. This case is a classic example of why designers and brand owners need to be vigilant in protecting their trademark.
Similarly, in the case of ‘Crocs Inc. USA v. Bata India Ltd & Ors‘[5], where the issue of whether a design could equally function as a trademark was put into perspective- the plaintiff to the suit was unsuccessful in achieving a favour for the design infringement suit filed against the Indian brand ‘Bata” as the designs were found to be not new or original. The judgment in favour of the defendant stated that ‘as long as the elements of design are not used as a trade mark, but a larger trade dress get up, presentation of the product through its packaging and so on, given that a passing off claim can sustain. A passing off action has been held to be maintainable with respect to elements of trade dress and overall get up, other than registered design and not with respect to registered design. It was argued by the Defendant that if the passing off is claimed of elements of the design as a trade mark, no passing off action lies. Since the plaintiff itself relied on use of its registered designs as a shape trade mark and no additional features qualifying as trade dress, which are not part of the registered design, have been pleaded or pointed out, the passing off suit is not maintainable.
The court agreed with the Defendant that the plaintiff has not been able to show any extra features, besides the design, which is used as a trade mark.’[6] Consequently, the Court interpreted the legal ambit of the Designs Act, 2000 in the form of granting limited monopoly by way of registering designs and thereafter, the same should be open for use for anyone, once the registration period has lapsed, therefore, if Designs Act permitted to continue using ones designs in the form of a trademark, post the registration term, the whole legislative intent of the design would lose its value. ‘The court used the analogy of patents rights which is granted for a limited period and observed that the intention to give design protection for a limited time cannot be extended to protection in perpetuity by claiming trademark rights.’[7]
A recent yet eye-opening case took place when the high fashion French brand of Christian Dior was allegedly found to have copied the styles and design of a young startup called ‘People Tree’.[8] People Tree is a small platform created for people to pitch in ideas of creative works and mainly involves handloom and self-woven crafts to create apparels. In the case of Dior copying People Tree’s designs- People Tree in one of their projects, with the help of artisans from the land of Rajasthan, had collaborated to create designs in the form of block prints which were ultimately projected on their clothes and manufactured into the market. Unfortunately, Christian Dior’s brand happened to copy the designs of the block prints and was later seen on a magazine cover with famous actress, Sonam Kapoor wearing a dress with the same designs. This IP related case ploughed into all legislative intents under the blanket of Intellectual Property laws. However, People Tree won the case and was able to retain their artistic work under the Copyright Act, 1957.
Such cases give hope to both, the fashion industry and the IP sector in the country to gain better infrastructure in order to preserve the quality of work produced in India, with other designers like Rohit Bal, Anita Dongre, Anju Modi, etc. who have been the first in the industry to register their work of fashion under the Indian IP laws, whereas, on the other hand, the requirement for stricter and broader legislation in the form of ‘fashion laws’ is the need of the hour.
LABOUR EXPLOITATION: FASHION INDUSTRY’S DARK SIDE
But these are not the only hiccups in the fashion industry, behind its many follies, the enormous efforts and labour of the workers who toil for these global fashion brands, goes unnoticed. Labour exploitation has been an ongoing dilemma over the years and has been rampant with the increasing vices of the fashion industry.
The garment industry in particular is a woman dominated sector (39.1% of women are directly employed in the industry, as a proportion of all employees)[9], along with an irrational employment rate of child labour. According to a survey conducted by the International Labour Organization, estimates of 170 million children around the world are engaged in child labour.[10] Some forcefully made to labour and others, helpless to provide for themselves and their family- although child labour is strictly forbidden in some countries, is still extensively common in developing nations. Child labour has been a long known issue in the fashion industry due to the heavy requirement of cheap labour and activities to be carried out that are better suited for children than adults. Garment manufacturers who produce cotton products often own the whole supply chain of growing, harvesting, weaving, yarning and manufacturing; cotton picking is an intricate task to conduct, therefore, such manufacturers often employ children for their small fingers to pluck cotton buds and avoid any damage.
Along with child labour, women face oppression too, as labourers of factories that work for these brands as their supply chain. The detrimental quality of lifestyle procured to these factory workers, at most instances does not even round up to half of what a daily wage worker’s salary looks like. In times where fast fashion is in vogue, brands around the globe trot to win the race, which leads them to turn to third world countries, where cheap labour is freely available.
An article by ‘The Guardian’ covered a report by the Centre for Research on Multinational Corporations (SOMO) and the India Committee of the Netherlands (ICN) that uncloaked the stories of instances occurred in the south of India, disclosing that recruiters would approach parents of young girls belonging to rural and backward areas, convincing them to send their wards to ‘spinning mills with promises of a well-paid job, accommodation, three nutritious meals a day and opportunities for training and schooling, as well as a lump sum payment at the end of three years’.[11] However, these false promises of providing a decent lifestyle are nothing but a bait to invite them into ‘working under appalling conditions that amount to modern day slavery and the worst forms of child labour.’[12]
According to reports by Centre for Research on Multinational Corporations (SOMO), developing countries such as Uzbekistan, Pakistan, Egypt, India, China, Thailand, and Bangladesh are primarily the only ones who notoriously practice child labour in their textile and garment industries- where children are made to participate in each stage of their supply chains, for instance, Benin includes children in the process of production of cotton seeds, Uzbekistan in harvesting, Bangladesh in various phases of putting garments together and India in the process of yarn spinning.[13]
Various reports and surveys have suggested that the inhumane conditions inflicted upon both, women and children are neglected so, even in present times, where human rights plays an enormous role in conducting employer-employee activities. Amidst a pool of atrocities these workers experience, women often face situations of low and untimely salaries, forceful labour for overtime hours, unhygienic and substandard living conditions and are likely to be subjected to abuse and beatings, if ever complained. On the other hand, children workers in the garment industry are treated as naïve and susceptible victims of badly paid work, where they are tricked into performing varied dangerous tasks in the name of money; they are also made to work for extra hours, and in case of cotton industries, are frequently exposed to pesticides and are yet paid below the minimum wage bracket. ‘In developing countries where cotton is one of the main crops, children are enlisted to help harvest the delicate crop and reports suggest they work long hours sowing cotton in the spring, followed by weeding through the summer months.’[14]
However so, it is an unfortunate state of affairs where these slaving women and children workers cannot find anyone to advocate for their oppression, and be their voice. Such was the situation in the incident of Rana Plaza collapse, in Dhaka, Bangladesh where over a 1000 workers died and approximately 2000 workers were severely injured; the eight-storey building was housing garment producing factories for various multinational brands, however, the building was in a dilapidated structure and the owners had been informed to vacate and immediately cease all factory work. Nonetheless, the workers were summoned to come in for work, the result of which cost them their lives. Such is a case of pure labour exploitation with nil justice, news reports state that various labour advocates were willing to campaign for the workers compensation but found no success.
In light of the problems caused by the garment industry, the greatest hurdle in taming such exploitations is the multi-layered chain of supply that each garment, belonging to each brand holds. Global brands such as Zara, H&M, Marks & Spencers, etc. are owned by countries that have rigid and stringent labour laws and these brands place strict guidelines on the work of their suppliers, however, in the process of manufacturing products, their work is often sublet or sub-contracted to other factories, which in turn makes it easier for buyers to be curtained from having knowledge of such practices.
In addition to this issue, the garment industry also faces a lack of transparency when it comes to their corporate structure- in a research conducted by ICN and SOMO on the garment industries thriving in Southern India, found that ‘The number and precise locations of different units is equally difficult to figure out. It is not even easy for outsiders to find out whether a firm is horizontally and/or vertically organized. Publicly available information about employment relations, including human resource policies and practices, is also negligible. Details about the size of the workforce, the methods for recruiting workers, whether the workers are lodged in hostels and the location of these hostels and the number of hostel residents are not easily obtainable. Likewise, information about wages and benefits is not readily available.’[15]
In light of the question of ‘fashion’, whether it is a boon or a bane, it has been a thriving industry with not only being a mass contributor to the economy but has also helped in establishing foundations of the richness of the culture and folklore of a country. In India, the first ever discovery of its own identity of clothing was with the inception of the Swadeshi Movement, in the year 1905. With the beginning of the 1600’s, the inception of the East India Company took place in East and Southeast Asia (India included). Ever since the British landed foot on the Indian soil, our trade and textile industry hit rock bottom in ways, where it became difficult to curb the deteriorating conditions of welfare of the Indian society. Decades passed by, and with each industrial revolution, the local handloom workers ran out of business- India was the land of cheap labour as well as a mass producer of cotton textile, which lured the British to take over our country.
The industrial revolution saw the growth of novel machinery and mechanism that replaced the work of handloom workers and weavers, therefore exploiting and enticing them to sell their products at cheaper rates to the British, who further exported it to Britain at higher rates. Similarly, with the growth of control of the British Raj in India, farmers were forced to solely grow industrial crops in order to fulfill the needs of the British exports, for example, the industrial revolution had already looped in labourers to work in British factories for cheap wages and nil welfare costs, at the same time farmers and cultivators were also being stripped off their own lands by landlords who worked for the British, forcing them to grow only cash crops such as cotton and indigo, for their selfish purposes. Such practices left the cultivators’ lands barren for ages and therefore, farmers dealt with years of famine and poverty.
However, in response to the gruesome atrocities of the industrial revolution, the Swadeshi movement was launched by our national leaders such as Lokmanya Bal Gangadhar Tilak, Lala Lajat Rai, Aurobindo Ghosh, V.O. Chidambaram Pillai and Babu Genu, who were the brain child behind the movement. Swadeshi movement was the first ever revolt made in our nation against the domination of the British- this movement brought in light the importance of handmade woven ‘khadi’, that is associated with India till date. Similarly, the ‘Make in India’ reform promoted by Prime Minister Narendra Modi, in order to bring recognition to the work of creation in the form of handloom and textile that is produced in our country, is a building block in the process of establishing a fort for the Indian fashion industry and pinning it on the globe.
To conclude the research, the Indian fashion industry has been exponentially oozing with better and novel innovations and works of art, at the same time the IP eco-system in the Indian legal chain is becoming more structural and proliferated in terms of widening its umbrella of understanding of newer challenges faced in the form of intellectual property protection. Keeping in mind, as previously mentioned, the wide ambit of the fashion industry, stretching from international trading, business and finance, modeling to textiles, cosmetics, apparel and even footwear, this multifaceted field of work requires rigorous attention in order to keep flourishing, perhaps a legislation governing all the aspects together could bind the fashion world’s challenges into one.
[1] Special provision regarding copyright in designs registered or capable of being registered under the 1[***] Designs Act, 1911–
[2] Indlaw DEL 2023
[3] Copyright in any design, which is capable of being registered under the 1 [***] Designs Act, 1911 (2 of 1911), but which has not been so registered, shall cease as soon as any article to which the design has been applied has been reproduced more than fifty times by an industrial process by the owner of the copyright, or, with his license, by any other person.
[4] 2017 CS (COMM) 714/2016
[5] 2019 SCC OnLine Del 6808
[6] Crocs Inc USA v. Bata India Ltd & Ors, case summary, Casemine, 18 February, 2019
[7] Crocs Inc USA v. Bata India Ltd & Ors, 2019 SCC OnLine Del 6808, Khurana & Khurana Advocates and IP Attorneys, 09 March, 2020.
[8] No citation available, as an out-of court settlement was carried out, not revealing details of the whole case.
[9] ‘Labour Absorption in Indian Manufacturing: The Case of the Garment Industry” Jayan Jose Thomas & Chinju Johny, Centre for Sustainable Employment, Azim Premji University’ May 2018.
[10] ‘Child Labour in the fashion supply chain: Where, why and what can be done’, Josephine Moulds, The Guardian (sponsored by UNICEF)
[11] ‘Child Labour in the fashion supply chain: Where, why and what can be done’, Josephine Moulds, The Guardian (sponsored by UNICEF)
[12] ‘Flawed Fabrics: The abuse of girls and women workers in the South Indian textile industry’, SOMO & ICN, October, 2014
[13] ‘Child Labour in the fashion supply chain: Where, why and what can be done’, Josephine Moulds, The Guardian (sponsored by UNICEF)
[14] U.S Department of Labour
[15] ‘Flawed Fabrics: The abuse of girls and women workers in the South Indian textile industry’, SOMO & ICN, October, 2014
