Dhruvika Bhanot brings a ringside view of the fourth day of the Indian Couture Week where lush designs dominated while a dialogue was initiated to protect the same
Imagine the economic distress and chaos that would erupt in Chandni Chowk if designers like Manish Malhotra or Sabyasachi were to sue the shopkeepers who monetise their designs by selling replicas of their lehengas and saris with minor tweaks?
Senior Intellectual Property Rights (IPR) lawyer Safir Anand, said the unorganised sector poses a unique problem in the case of plagiarism. “Sometimes these shop owners also have local support from police and politicians to indulge in their activities. And it becomes extremely difficult to curate evidence. They are prospering at the cost of the entire fashion industry,” he told us on the sidelines of the India Couture Week at a masterclass session.
Designers, too, are now in a rush to getting their work protected, sometimes down to a particular motif, curl and style, even before a collection is launched. For once the replica is out in the public domain, even if you have sold one piece, you cannot reclaim your creative legacy. Therefore, Anand stressed on the need for designers to protect their work. “Last year, at Couture Week, Rohit Bahl had done a session with the media and apprised them that he’d sought protection. Anju Modi took the same step, she even watermarked her designs on the website to indicate that unlike the past, her collection was protected that time.”
Though the issue of copying has not been tackled 100 per cent but its extent has diminished drastically. So, when a designer creates something original, he/she should immediately file for its protection before it is released to the public. While the duration of protection originally is for 10 years, it can be extended for another five years. So that means 15 years of absolute monopoly. This is what design protection entails. Sabyasachi, who had design registration, sued another creator for infringement and he was restrained. The defendant had copied one of Sabyasachi’s lehengas. Though the colour was different, the pattern was an exact copy. If a designer has the registration, he can seek legal redress.
Copyright, on the other hand, does not require any prior registration. It comes into effect the moment the design is created. The designer can have copyright over all their intellectual properties. The position of the stage, the way the models walk, the duration of the music are all intellectual properties. “During Rahul Mishra’s show the other day, he did a certain arrangement in which even the way people sat is protected. If somebody copies that concept, as long as Rahul Mishra is able to demonstrate that it did not exist earlier, he will be able to assert his right under copyright even without design protection,” Anand said.
Tarun Tahiliani also had his designs copied. In his claim, he not only said that there was a violation of his copyright on his drawings but also that his drawings had been subjected to derivative work. And he had the entire evidence. This is a clear example of when a designer does not have protection. Claims can be made on violation of drawings, patterns and embroidery.
Designer Ritu Kumar could not succeed against Biba because she did not have design protection and the retail chain had sold more than 50 copies. “We have gone to the Supreme Court to have the rule of 50 copies dropped and that design and copyright should merge. It becomes very difficult for the designer fraternity to protect their designs. In case the sales cross 50, they are hit by a certain provision of law, which actually favours the person on the wrong side.” The petition is still pending in court.
Designers have come forth with their own trademarks which further the sacredness of their label. Burberry created the check design that had trademark protection, which meant that nobody was entitled to use it. They sued the Target store because it sold scarves which resembled the check design. They entered into an out-of-court settlement, and of course, Burberry’s rights were honoured.
“If an accessory is to become a trademark, one should be able to look at it and be able to recognise its proprietor,” Anand says, further sharing notes about trademark protection. That’s why Louis Vuitton is trying to make its design pattern much more conspicuous and create trademark rights around it. Because they don’t have the label name on them, the design itself is the brand. Similarly, sometimes colour can become a trademark. In real terms, one cannot have absolute monopoly over a colour but in the case of Christian Dior, the red coloured console is its trademark.
Copying is a dire issue plaguing the fashion industry. If Louis Vuitton were not to stop anyone in the market from copying its designs, which would become available in the market for a mere Rs 500, customers would ignore it because it would appear cheap. But what then if it were to become more sophisticated, which is possible with advanced technology, and the quality of the copied item improvises? “Then the customer would move on to another brand since they cannot distinguish if the item is real or fake since the item has been copied to perfection. The fact that a copied luxury item is commonly available in the market, makes the original lose its value”, Anand justified.
He said there has to be awareness about intellectual properties, “And if the problem is not cracked down, there should at least be a regulatory body like the FDCI to register designs. It need not be a statutory recognition but just enough to maintain registries. It can work as an intermediary measure which doesn’t have a cost implication because it would not be under the government but for the interests of the designers, it would be more like a watchdog.”