The Indian Fashion industry has immense potential and is gradually making its mark at the global level. Indian textiles and apparels have been extremely sought after since time immemorial. It is one of the oldest industries in the Indian economy that has been flourishing and growing since its inception. According to Forbes India, the global consumer spending on fashion crossed US$1.5 trillion in 2015 and India’s fashion retail market is set to grow to US$115 billion by 2026. In the past decade, there has been a stark shift in the perception of garments in the Indian market as durable item, to something that is shopped seasonally to keep up with the latest trends and fashion.  This increases the number of clothes that end up in local landfills. Ironically even after these landfills are overloading with discarded fabric, India imports large quantities of second-hand clothes from countries across the globe.  There is a dire need for fashion brands and consumers to opt for the path towards the path of sustainable fashion. 

You’ve probably heard or used the term sustainable fashion, but what does it mean?

When clothes, shoes, accessories are manufactured in a way where to goal is to be considerate to the environment and humanity by keeping in mind the environment and socio-economic aspects of production. Sustainable fashion involves working towards a system that does not leave a negative footprint. 

In the words of designer Gautam Gupta” if we do not start embracing sustainable fashion now, the future is grim”

 What is the Legal position regarding sustainability in India?

 Several acts have been introduced to protect the environment from the devastating effects of industrial growth, these include

•       The Factories Act, 1948,
•       The Water (Prevention and Control of Pollution) Act, 1974
•       The Environment Protection Act, 1986
•       The Air (Prevention and Control of Pollution) Act, 1981
•       The National Green Tribunal Act 2010
•       The Hazardous Waste Management Rules

The Namami Gange Mission was launched with the key objective of working towards achieving SDG 6, major components include sewerage project management, sanitation, tackling industrial pollution, water use efficiency and quality improvement, ecosystem conservation and Clean Ganga Fund. Similarly, National Clean Air Programme was launched in 2019 to keep a check on air pollution and monitor the quality of air. Indian courts have recognized a clean and pollution-free environment as a fundamental right under article 21 of the constitution and the same can be seen in the judgement of MC Mehta vs Union of India. The courts have applied the principle of ‘Polluter Pays’ to impose liability on the person who pollutes the environment. Criminal Liability and damages can be imposed on the violation of these environmental laws. To protect the workers, employment and labour laws to ensure a minimum wage for workers, wildlife protection laws to prohibit the import and export of exotic skins and furs for clothing and accessories.

However, there is a huge difference between the support on paper and in spirit, Elle recently compiled a list of Sustainable Clothing Brands that people should turn to, this does not yet include an Indian brand, India still has a long way to go in terms of production of sustainable products to match the standard at the global level.

Let’s look at some of these sustainable brands to understand what are they doing differently?

Re/Done

The production of jeans has been notoriously known for polluting various natural resources, Re/Done has found an alternative their work embraces the unconditional love for jeans, they repurpose old jeans into current styles. Kendall Jenner, Emily Ratajkowski and the Hadid sisters are often seen wearing the brand. RE/Done believes that rebuilding jeans is an art and they are fully committed to the path of sustainability and are here to stay. 

They recently launched eco sneakers made from recycled leather and material taken from discarded plastic bottles, even the laces are organic cotton and the soles are made from a recycled rubber compound. 

Collina Strada

The New York-based label is making sustainable fashion fun, they use deadstock material, upcycled tie-dye sweatshirts and rhinestone-encrusted water bottle labourwhich was carried by musician Maggie Rogers at the 2019 Billboard Women in Music event.

 The designer Hillary Taymour told Vogue “We have fabric made from rose petals, so we’re printing on and hand-dying that. I would say 60 per cent of the collection is made from that fabric. It’s the most sustainable version of silk that we can make today.

Now let’s look at some brands closer to home that are putting their best foot forward to make their brand sustainable

No Nasties 

This is an organic fashion brand that believes that a garment is a labour of love, the love for the plant and the love for good designs. Their products are made from 100% organic cotton grown in a fair-trade factory which is safe and does not promote child labour. As they do not use fur, wool, leather and silk it is vegan. The buttons are made from coconut shells and they follow a zero-plastic packaging policy. They offer a wide range of products for men and women and even cater for organic canvas bags!

Maati by Neha Kabra 

This ethical fashion label caters for contemporary womenswear from Udaipur, Rajasthan. All the fabrics used are upscaled and the packaging is eco-friendly, they have a no-waste policy and they use natural dyes. The brand focuses on being environmentally friendly and is verified by PETA.

Disguise Cosmetics 

It is one of the first homegrown PETA approved vegan and cruelty-free brand in India. They have a wide range of products ranging from Lipsticks, highlighter sticks, eyeshadows and a lot more! They have taken the initiative to go the extra mile by starting a recycling program where you can send them the empty containers and they forward it further for waste management. The affordability of their products adds another star. 

India may be small compared as compared to the global sustainable fashion industry, but the efforts are gradually taking shape. In February 2017, India won the ‘Best Country Award’ for its first exhibit at the International Fashion Showcase of London Fashion Week, curated by Gautam Vazirani of IMG Reliance. Ruchika Sachdeva of Bodice Studio won the International Woolmark Prize in the womenswear category for 2017-18. They support ethical fashion and award the best global talent for their work with Merino wool. On Lakmé Fashion Week the focus of Sustainable Fashion Day was #NorthEastMojo, a collaboration with the United Nations to boost the sustainable economy of the Northeast. It is clear that the awareness around the importance of sustainable products is steadily growing for good.

The global effort to make the fashion industry more sustainable

The importance of sustainable fashion is catching on across the world, in 2018, Under the auspices of UN Climate Change, fashion stakeholders worked to identify how the textile and fashion industry could move reducing climate action. This led to the creation of the Fashion Industry Charter. It aims to achieve the vision of net-zero greenhouse gas emissions by 2050. In 2020 the signatories of the charter came up with a Playbook for Climate Action, for industry stakeholders, this book was intended to be a guidebook for the small and medium scale fashion companies who had not yet taken action against climate change but want to contribute. Almost a hundred brands have signed the UN Fashion Industry Charter these include some of the most popular fashion brands like Chanel, Mango, Ralph Lauren and many more. 

At the 4th UN Environment Assembly in Nairobi, in March 2021, the UN Alliance for Sustainable Fashion was launched. The UN Alliance aims to work at reducing the negative impact of the fashion industry on the environment by identifying challenges and ensuring that the fashion value chain actively contributes towards the achievement of the Sustainable Development Goals targets.

References

Elle. (n.d.). Retrieved from https://www.elle.com/uk/fashion/what-to-wear/g22788319/sustainable-fashion-brands-to-buy-from-now/

Forbes India. (2018, May 23). Business and Strategy. Retrieved from https://www.forbesindia.com/blog/business-strategy/whats-trending-in-fashion-industry/

Krida Legal. (n.d.). Retrieved from http://www.kridalegal.com/post.php?id=40

Vouge. (n.d.). Fashion. Retrieved from https://www.vogue.in/fashion/content/how-collina-strada-is-making-sustainable-fashion-fun-hillary-taymour-on-her-latest-eco-conscious-collection

]]> https://fashionlawjournal.com/glamour-with-guilt-how-can-fashion-brands-become-sustainable/feed/ 0 https://fashionlawjournal.com/fashion-influencers-and-law/ https://fashionlawjournal.com/fashion-influencers-and-law/#respond Fri, 09 Jul 2021 10:52:43 +0000 https://fashionlawjournal.com/?p=1895 Fashion influencers and Fashion enthusiasts love Instagram when it comes to getting inspiration for outfits. With Instagram reels have turned into an endless virtual runway, the fashion hauls and #OOTD stories and posts have not only fulfilled our love for aesthetics but have even upped our wardrobe game by exposing us to the latest trends. 

According to a 2021 report by Global Web Index Social Media influencers are very popular among Gen Z, the report revealed that 28% of young adults falling in the age group of 13-23 across the globe follow influencers to keep up with trends.  Even the Millennials were not far behind, with almost 23% of adults ages 24-37 were found to be following influencers. The survey also revealed that fashion and beauty are some of the biggest niches in the world of influencers and this is the reason Instagram Fashion influencers have a huge following.

As the famous quote goes, with great power comes great responsibility. The same applies in the context of social media influencers; the greater the influencer bigger the responsibility. Influencers have a responsibility towards the audience that follows them and to keep a check on this, certain legal frameworks have been implemented.

Guidelines by Advertising Standards Council of India (ASCI) 

On 27 May 2021, final guidelines for Influencers were released by the  Advertising Standards Council of India which was to be applicable from 14th June 2021. The term influencer was defined by the ASCI in a broad sense as “someone who has access to an audience and the power to affect their audiences’ purchasing decisions or opinions about a product, service, brand or experience, because of the influencer’s authority, knowledge, position, or relationship with their audience” This definition also included Virtual influencers that are computer-generated ‘people’ or avatars like Miquela Sousa, a 19-year-old intelligent robot in LA who has 3 million followers on Instagram 

 The main purpose of these guidelines was to ensure a customer’s interests are protected by distinguishing between promotional content and other content of the influencer.  This was done to prevent the manufactures and brands from using influencers as a source of marketing their products without giving a heads up to the consumer that the said promotion or review is a paid one. After the implementation of the guidelines, social media influencers are required to put disclosure labels as per the specifications of the guidelines to identify paid posts as advertisements. This includes “Material Connections” which is any connection between an advertiser and influencer that may affect the weight or credibility of the representation made by the influencer. This includes but is not limited to benefits and incentives like monetary compensation, free products, hotel stays, awards, family or employment connection between the influencer and advertiser etc. 

The placement of the disclosure should be such that it should be easily visible and in a prominent, hard to miss manner and not hidden in hashtags. The disclosure labels that can be used are “Advertisement”, “Ad”, “Sponsored”, “Collaboration”, “Employee”, “Free Gift.”  A virtual influencer would be required to disclose to the customers that the interaction is not with a real human being.

It is also advisable that influencers carry out Due diligence themselves to review that the advertiser is in the position to substantiate the claims that are being made in the advertisement. 

The Code for Self-Regulation of Advertising by ASCI

The code aims to control the contents of advertisements so that they are not offensive and to ensure that the representations made are true and honest. The code applies to advertisers, advertising agencies and media.  lays down various guidelines to ensure there is no discrimination based on these advertisements like` the Guidelines of Advertising for Skin Lightening or Fairness Improvement Products, Guidelines for Advertising of Educational Institutions and Programs etc. A detailed Complaint Procedure is also aid out to cater for redressal. 

The Consumer Protection Act, 2019

This bill aimed to move further towards caveat venditor from the prior existing notion of caveat emptor. The bill proposed the establishment of a regulatory authority called the Central Consumer Protection Authority (CCPA) powers of enforcement, unlike the existing Consumer Protection Councils which are only advisory bodies. It was the very first legislation that emphasized targeted advertising, market campaigns through influencers and celebrities. The changes brought celebrities and influencers under the purview of services and hence they could be held liable for advertisements that could harm the consumers.

The CCPA aimed to promote, protect, and enforce the rights of consumers qua misleading advertisements and unfair trade practices. They will have the power to initiate class-action suits including recall, refund and return of the product. It is a well-known fact that the courts in India are overburdened with existing cases and hence Mediation as an alternative method for dispute resolution can be implemented if agreed by both parties.  The bill placed importance on Celebrities and promoters to check the validity of the claims made by the advertisement before promoting them. In the past we have seen many celebrities face backlash due to the lack of diligence for example; Amitabh Bachchan in the Maggi case, MS Dhoni in the Amrapali case and so on. The bill did not just affect Bollywood A-listers but also influencers across various platforms who now needed to be careful of what they are endorsing. In case of failure to comply a penalty from 10-50 Lakhs can be imposed in case of failure to comply with the rules. A ban from future endorsements can also be imposed for a period of 1-3 years. 

Judicial Precedents

In the recent case of Marico Limited v Abhijeet Bhansali, a YouTube video by an influencer was taken down for undervaluing Marico’s Parachute Coconut Oil which led to damage to the reputation of the company. The influencer used certain questionable techniques and claimed that the oil was not pure. The court observed that the influencer was promoting competitors of Parachute while portraying Parachute coconut oil in a bad light. In the case of Reckitt & Colman v Kiwi T.T.K. Ltd. the court held that:

“A manufacturer is not entitled to say that his competitor’s goods are bad so as to puff and promote his goods. It, therefore, appears that if an action lies for defamation, an injunction may be granted.”

Even though the influencer tried to take the defence under article 19(2) of the constitution and said that he had a right to freedom of speech, however, the Bombay High Court ruled that as he was comparing it oil with other competitors it is commercial speech and relied on the Supreme Court judgement in Tata Press Limited v Mahanagar Telephone Nigam Limited  that commercial speech that is misleading is not protected under Article 19(2) of the constitution. The court ordered the removal of the video from YouTube to protect the plaintiff- company from irreparable harm and injury 

How can Influencers avoid liabilities?  

1. Social media influencers ought to ensure the product they are promoting does not violate or hurt any sentiments of a particular section of society. 
2. A background check and research about the company can go a long way in building trust and confidence 
3. It has become extremely crucial for Influencers to disclose any paid promotions, advertisements to their customers and followers on social media. 
4. Along with the disclosure message, relevant hashtags like #collaboration #sponsored #paidpromotion #ad can help the customers to know when a product is based on personal opinion and when it is a part of an advertisement. However, the disclosure for an advertisement should not merely be just these hashtags as they are easy to miss. 
5. Having a contract in place is always advisable, this is to ensure that there are no ambiguities in the agreements and there is proof of too.
6. Transparency is the best policy; a deprecating statement about a product they have not tried or used and giving a fabricated review of the experience is not allowed by law. 
7. Due diligence, background checks, and personal research are non-negotiables for influencers now. 

Bibliography

ASCI. Guidelines for Influencer Advertising in Digital Media.

Economic Times. “The celebrity and the Consumer Protection Act.” https://brandequity.economictimes.indiatimes.com/news/marketing/the-celebrity-and-the-consumer-protection-act/77189902.

Khaitan and Co. “ASCI Releases Influencer Advertising Guidelines For Digital Media.” https://influencermarketinghub.com/influencer-marketing-benchmark-report-2021/.

]]> https://fashionlawjournal.com/fashion-influencers-and-law/feed/ 0 https://fashionlawjournal.com/read-to-know-can-hashtags-be-protected-as-trademarks/ https://fashionlawjournal.com/read-to-know-can-hashtags-be-protected-as-trademarks/#respond Tue, 22 Jun 2021 04:57:39 +0000 https://fashionlawjournal.com/?p=1837 #HowItBegan

Social media has changed the way brands and businesses advertise their products and services. In a day and age where a Company’s online presence greatly impacts its popularity and customer base brands have started to recognize the power of social media engagement. In 2006 Twitter introduced the concept of hashtag to the world of social media, it acted as a medium to hyperlink all posts that had the same # symbol allowing the users to view the information and images related to these hashtags together in an organized manner. Today almost all social media platforms have introduced hashtags and subsequently, hashtags have now evolved as a marketing tool. 

With new trends coming up on social media every day, a business can gain massive traction and reach by jumping on the bandwagon, along with these trends come a series of hashtags that make the trends identifiable and searchable, for instance in 2020 #dalgonacoffee took social media by a frenzy, in 2021 the #dontrushchallege among others had gained popularity. There are certain evergreen hashtags like #OOTD, #throwbackthursday which social media users add to their pictures while sharing them on social media. 

#HashtagForBrands

During New York Fashion Week 2016, which is one of the biggest and most awaited event in the fashion industry, designers launched custom hashtags such as #FentyXPuma, #YeezySeason3, #AllAccessKors, #TommyFall16 and #MyCalvins to display their latest fashion collections and to allow followers live and behind-the-scenes looks at their NYFW shows, triggering more than 561,000 mentions on social media in a single week. 

GoPro uses #GoPro for creating value, promoting new products, and interacting with their customers. The hashtag has more than 48.2 million posts just on Instagram. Nike’s #justdoit, #sayitwithpepsi by Pepsi and #CaughtOnDropCam by Google  are some examples that show that brands have embraced hashtags and are using them as a medium to promote and distinguish their products. 

However, can hashtags be registered as Intellectual property? Can you really stop others from using your hashtag? 

#TrademarkProtection

There are many types of Intellectual Property recognized by the World Intellectual Property Organization like Copyright, Patents, Trademarks etc. Each of these types governs and protects different areas of work. In simple words, copyright offers protection to artistic works like music, paintings, films etc. whereas patents protect inventions and processes. Trademark on the other hand governs words, phrases, symbols, design or any combination of these that can be used to distinguish the product or services of one person from those of others.

Since hashtags are not ideas or inventions that would be subject to patent protection, and they are too short to qualify for copyright protection, a hashtag clearly fits best for protection under trademark law.

In India, the laws relating to trademarks are governed by the Trademark Act, 1999.  According to Section 2(1) (zb) of the Act, a trademark is defined as a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include the shape of goods, their packaging and combination of colours. 

It is evident that a hashtag has the same two criteria for registration that any other trademark does, i.e.

•   it should be capable of being represented graphically
•   it should be capable of distinguishing goods and services of one person from another person.

A hashtag can be registered as a trademark only if it is distinctive and the hashtag is used in conjunction with the goods and services offered by you. The hashtag should be a “brand identifier” and should be associated with the business. Generic words that are used in daily communication are not generally given protection. Hashtags can be protected especially when you can demonstrate that it has become synonymous with you, or your content. For instance, when you hear the hashtag #kyaut, #scauzme you might associate it with well know influencer if you are familiar with her content because overtime the hashtag has become associated with her and hence in such a scenario the likeliness of getting protection is high as there is a certain reputation that has come to be associated with the catchphrase. Multinational companies like The Coca-Cola Company have successfully registered hashtags as trademarks these include #smilewwithacoke and #cokecanpics. Interestingly, no hashtags have been registered as trademarks in India.

The position in the US is slightly different and has evolved since the introduction of hashtags. The United States Patents and Trademarks Office acknowledges the # symbol to be registered as a trademark only if it functions as a source identifier of the applicant’s goods or services.

For instance, in 2015, 1042 hashtag trademark applications were filled in the United States and the USPTO granted licenses to several trademarks like #EveryDayMadewell, #TheSelfie #HowDoYouKFC etc. but denied protection to #WORLDTRAVELER, #BETHEFAN due to its mere descriptiveness or discrepancy in the alignment of an acceptable specimen of use.

#Infringement 

In Fraternity Collection LLC v. Elise Fargnoli, the US District Court has settled a trademark infringement case where it considered a hashtag as a trademark. The court found that there was trademark infringement and false advertising by the defendant, Elise Fargnoli. She had used the hashtag “#fratcollection” and “#fraternitycollection” on her Instagram account to promote a product that had earlier been designed for the plaintiff’s competitor. The users on clicking the hashtag were directed to the same designs of another brand fraternity collections traffic was channelized to the products manufactured by its competitors. Even though the matter was eventually settled, the court held that there was trademark infringement and false advertising

In Eksouzian v Albanese, the issue was whether the use by one of the parties of the hashtags #Cloudpen and #Cloudpenz on Instagram breached the terms of a trademark settlement agreement. In this agreement, the party which using these hashtags had agreed to refrain from any trademark style use of the word “cloud” in conjunction with the words  “pen” or “penz” The court, in this case, held that there was no breach of the agreement.  The court ruled that a hashtag is a “descriptive device” and not a “source identifier”.

Registering your hashtag as a trademark does not prevent other users from including it in their social media postings, it will not give you a monopoly over the use of the hashtag. However, it provides legal protection in the event when another company uses it to promote a competing product or service within the same industry as yours.  It is evident that as brands strengthen their digital presence, registration of hashtags as trademarks and disputes arising out of their infringement will become more prevalent, it is important for brand owners to consider the use of hashtags in their branding strategy if the hashtag is worth promoting, ensure that it is worth protecting too.

Cyber-squatting is the unauthorized use and registration of domain names that are identical or deceivingly similar to trademarks, service mark, a particular company’s name or even personal names. To put it simply, let us take a look at a domain name; ‘louisvuittonbag.site.’  From the first look, it looks like a genuine page handled and authorized by Louis Vuitton, however, in reality, this is one of the 120 domain names and websites that were report by the brand for infringement of its trademark in 2018, we will discuss the case later in the article.  In this digital age, where every company wants to build their brand, domain names have become analogous to trademarks. However, the major issue faced here is that there are numerous TLDs ( Top-Level Domains, these are the words that follow the ‘dot’ in any domain name) and under these combinations, any domain name can be registered.  For example, a web page for H&M maybe www.hm.com or www.hm.net or even www.hmindia.com

There are a number of combinations that can be registered and it becomes extremely difficult for companies to keep a track of all these combinations as it is not feasible to procure all of them and the domain names are given on a first come first serve basis. Cyber-squatters indulge in various notorious activities to hamper the reputation of the brand. They may acquire the domain name of a legitimate trademark holder and hold it till the brand agrees to pay or defame the brand and blackmail them to purchase the domain name from the squatter. 

There is no specific law in India that deals with domain name disputes, but the Indian courts have played a significant role in resolving related disputes. The courts have recognized domain names as business identifiers and trademarks and hence they apply the principles of trademark infringement to such disputes. Major cases surrounding cyber-squatting include-:

Louis Vuitton Malletier Vs Defendants 

In the case, Louis Vuitton sued for the infringement of its trademark in Florida, there are about 120 domain names and websites that have been highlighted in the case that have reproduced counterfeited versions of the Louis Vuitton trademarks. There were about 200 Chinese retailers who were selling knock-off goods online in the USA. The brand demand that these counterfeited sites should be canceled and permanently delisted from all search engines. The court ruled in favor of the luxury retailer and compensation worth $23 million was given.  

Titan Industries Ltd v Prashanth Koorapati & Others

This is the first case decided by an Indian court which deals with the protection of domain names. The plaintiff had registered ‘Tanishq’ as a trademark in 23 countries to produce and sell jewelry and timepieces. The defendant filed an application for the domain name ‘tanishq.com,’ and Tanishq objected to this unauthorized use of its trademark as a domain name. 

Tanishq argued that the consumers were very likely to believe that the defendant is in some way affiliate with Tanishq which will lead to unjust enrichment to the defendant while Tanishq will suffer a financial loss. The similarity in the same would confuse the people at large and the Delhi High Court found in favor of the Tanishq and granted an ex-parte ad-interim injunction restraining the defendant from using the trade name “Tanishq” or any other name that is deceptively similar.

Yahoo Inc. v Akash Arora & Anr.

In the high-profile case of Yahoo Inc. v Akash Arora & Anr, the plaintiff sought a permanent injunction prohibiting the defendants from operating any business, selling, advertising, or handling any services or goods on the internet and otherwise under the trademark and/or domain name ‘yahooindia.com,’ or any other name.

The defendant claimed that the plaintiff’s “Yahoo!” domain name was not registered in India then hence it could not be the foundation for a trademark infringement case. Along with that the term “Yahoo!” is a generic term that is not distinctive and hence lacked any elements of originality. The defendant contended that he had put a disclaimer that there was no association between the two so no action could be taken against him. The court gave a judgment in favor of Yahoo and granted an injunction. With the explanation that the plaintiff’s internet service had become widely recognized as the search engine and was original enough for protection. 

Some tips to protect yourself from these cybercriminals

• While pressing a link verify what purpose it has by hovering over it and make sure you examine the text that comes up.
• Due diligence is essential to know that the website you are using is genuine, you can be wary of domains that have a text after .com for instance hermes.com-bag[.]us.
• You should look out for any typos in the domain name, if there is any unnecessary repetition of letters or if there is a link that is directing you to another page 
• Look out for ‘rn’ disguised as an ‘m’, such as modem.com versus modern.com.
• If your instinct is telling you that something is too good to be true, well then it probably is.

]]> https://fashionlawjournal.com/whats-in-a-name-fashion-brands-and-cyber-squatters/feed/ 0