Design Protection & Safeguards for Fashion Designers in India | IP Attorney in Delhi NCR | IP Lawyer in Delhi NCR |

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Fashion designing is the art of applying aesthetic beauty to items of fashion. Fashion design is a representation of human intellect and creative mint that comes into insistence in the form of tangible products of fashion. On one hand, the Fashion Industry is thriving towards greater heights, on the other hand, it is being taken aback by the menace of piracy in designs. Piracy is the illegal and unauthorized copying, selling and distributing of any work which is protected under Intellectual Property Rights.

Piracy of Designer Products can be classified into two broad categories:

1. Knockoff: A knockoff is when a similar imitation of the fashion design is created however, it sold under a different label. Thus, it is not an attempt to pass off goods as original but to imitate the design line to line and sell under a label of another designer.
2. Counterfeit: Counterfeit is when both the fashion design and the label under which it is sold are copied in an attempt to pass it off as the original product. It is done with the intention to deceive the consumers into believe that the pirated copy is original.

 

Therefore, the fashion industry has to take reasonable measures to manage their Intellectual Properties (IP) as completely different part as against their commercial operation and one such important aspect is the registration and protection under the Designs Act, 2000. The Design Act of 2000 protects the visual appearance i.e. the aesthetic part of the product which does not have any functional value. If a design is able to qualify the condition of new, unique and novel, then it can be registered under the Act. Further, the protection under the Act can be extended only to the registered designs. Amongst all the Intellectual Properties (IP) tools, Design registration can be useful for almost all fashion designers and labels as it helps the designer to prevent anyone else copying his new and novel design, including both two dimensional features like textile prints and in three dimensional features like shape of the apparel. This protection under the Act is valid for a period of 10 years, extendable for a period of 5 years subject to fulfillment of certain conditions. Further, section 22 of the Designs Act, 2000 specifically deals with the piracy of the registered designs and makes such person involved in piracy liable for amount not exceeding Rs 25,000 in case to suit is brought against him or else the registered proprietor can institute a suit claiming injunction and damages.

For a design to be registrable under the Designs Act of 2000, the following conditions have to be fulfilled by the fashion designer:
• Design has to be new, original and novel
• Design shall not contain any scandalous or obscene matter.
• Design shall be different from all know designs or any combination of them.
• Design shall not have been disclosed to the public in India or abroad in any tangible form or used prior to filling an application of registration.
• Design shall not include any aspect that has any functional value.

The process for registration of design under the Designs Act of 2000 is as follows:
Step 1: Filling of Application
Applicant has to file an application for the registration of design with the Design wing of Patent Office along with the prescribed fees. Further, the application has to be accompanied by four copies of the representation of the design.

Step 2: Examination of Application
On receipt of the application, the same is number, dated and then taken up for examination. In case, any defects in the application are found, the same is communicated to the applicant.

Step 3: Correction of Defect or Issues
A period of 6 months are granted to the applicant from the date of application to correct the defect. In case the defect is not rectified, a person hearing can be granted to applicant to justify this actions.

Step 4: Registration of Design
hen the examiner finds no defect in the application or if the defect has been rectified by the applicant, the particular of the design are published in the Patent Office Journal and is deemed to be registered.

Hence, the registration of design applied on a apparel or garment becomes the only way available to the Fashion Designers or the cloths brands to prevent their designs from getting piracy and used to create cheap cloths that could have a tremendous effect on the goodwill of the Fashion Label including the Fashion Designers respectively.
Authored By: Adv. Anant Sharma & Ananya Jain