Muskan Mahajan – Fashion Law Journal

Fashion Design & Imitation – Here Is How A Fashion Designer Can Protect The Designs Unofficially

Muskan Mahajan — Fri, 19 Aug 2022 07:58:25 +0000

“Imitation Is The Highest Form Of Flattery” – COCO CHANEL

Does this imply that the fashion business is less concerned with intellectual property rights than other industries? Your brand is one of your most significant assets if you offer clothing, accessories, or patterns. A brand is defined under intellectual property (IP) regulations as everything that a customer recognises about your company. This includes your company’s name, logo, and product design. When starting a clothing line, think about how you can effectively secure your designs. The different official and unofficial security options available to businesses in the fashion sector are discussed in this article.

THE OFFICIAL SECURITY OPTIONS:

You have three alternatives for officially protecting your Intellectual Property (IP): registering a trademark, registering your designs, and applying for a patent. Trademarks can be used to protect product names, logos, and jingles. You’ll be able to do the following after registering: file a lawsuit against infringers; as a deterrent and caution, place the ® sign next to your brand; and make money by selling and licencing your brand. Words, colours, sounds, and a combination of the above can all be used in your trademark. Before submitting an application to register your trademark, be sure it hasn’t already been registered in the database.

Another option as mentioned above is to protect your brand with a registered mark which will give you the following protection: protection of appearance and physical shape. Thus, the shape and decoration of the product are both protected by this service. Another, way to protect your brand is by the way of a patent. A patent is a type of intellectual property registration that recognises your invention’s originality. Patents are normally granted for a period of twenty years. Due to the nature of the verification method used to establish that your concept, work, or innovation is absolutely unique, they are expensive to obtain and take a long time to process. Even though they are extensively employed in the fashion business, they are underutilised.

THE UNOFFICIAL SECURITY OPTIONS:

If you are afraid that your ideas, creativity and innovations used to create a design will be stolen or copied before it hit the market or even before it is officially protected i.e., before intellectual property registration then the following unofficial security options should be followed:

Send your designs to yourself through email or upload them to your personal cloud storage (Gdrive/icloud/onedrive)

Even if you have hundreds of rough drawings and aren’t sure which one will be finalised, save them all to your personal cloud space. Simply give each design a name (and possibly a serial code) and upload. In the event of infringement, you can use this digital evidence to later establish that you own it.

This technique of mailing yourself a copy of your own work is often known as “poor man’s copyright”. The copyright law makes no provision for this form of protection, and therefore is not a replacement for registration. It can only help you to secure your designs before officially protecting them.

Postal Self-mail your designs

Send your designs to a self-addressed envelope (at home or at work). Save the courier slip with the date/time information. Make a video of you opening the packet containing those designs/pictures/graphics. Both the courier receipt and the video will protect you in the event of future IP infringement.

This tactic is used in countries like the United Kingdom and France, where it is known as the Soleau envelope. However, one of the most serious issues with this technique is that mail is easy to tamper with, making it untrustworthy as proof. You can mail an envelope with nothing in it so that it has a specific date on it, then fill it with something later. You can use steam to open an envelope and replace the contents with something else. It’s just tough to tell if a piece of mail is in good condition. Therefore, these unofficial options only protect your design to a certain extent, thereby making official security options the most important security option.

Install surveillance cameras in your office or conference room

It’s possible that you’re inviting manufacturers to make the final product based on your design. Yes, not every meeting will result in a deal being closed. They can, however, take an image of your design for obvious reasons, such as checking with workers for final confirmation. The CCTV footage will record such gatherings and their behaviours (photography, scribbling, and so on).

Using the current date newspaper, take a picture of your designs

Select the design with the current date newspaper from the drop-down menu. Ensure that the date is apparent in the photo. This will serve as a record for future reference.

Have an IP clause in your job contract

If you have a team/staff to create your brand, make sure the employment agreement includes an IPR clause that gives you exclusive rights to the designs and restricts the employee’s ability to use/share them.

It’s critical to understand who possesses which rights to a design and how it might be used. If you’re not certain whether a design concept is fair use or could be considered infringement, it’s best to play it safe and avoid employing it. You can have a hard drive or notebook full of explicit, even savage, satire ridiculing popular businesses and personalities, but when it comes to publishing and marketing designs, you need to know the ins and outs of what you can and can’t do legally. As a small business owner, you should have a working relationship with a lawyer who can help you with situations like this. This type of advice is one of the most beneficial investments you can make in your company.

CONCLUSION

Design inspiration can originate from everywhere, and different people can come up with comparable clothing notions at the same time. That is one of the reasons why legal protections in the fashion business are so difficult to come by. However, the finest policies are always honesty and integrity, and fashion design copycats not only injure the designer from whom they are imitating, but they also deprive themselves of their own uniqueness.

Independent designers breathe new life into the fashion industry and the economy as a whole. It’s not just the correct thing to do to respect the intellectual property of the fashion design world. Therefore, these official and unofficial security options to protect the designs play an important medium to protect designers from copycats. Intellectual Property propels the entire industry forward with innovative ideas that captivate, enthral, and inspire even more outstanding work.

All you Need to Know about Sabyasachi x H&M: From Backlash to Apology

Muskan Mahajan — Sun, 22 Aug 2021 08:51:03 +0000

A much-anticipated collaboration between Indian couturier Sabyasachi and fast fashion company H&M debuted recently to much hype. The Indian designer Sabyasachi Mukherjee and Swedish fast-fashion chain H&M’s latest collaboration titled ‘Wanderlust’ had been introduced through selected stores and online market through hm.com worldwide from August 12, 2021.

The collection featured womenswear, menswear, jewelry, scarfs, sunglasses, visor caps, boho bags, belts, and many more exciting accessories, as well as the Sabyasachi’s signature saree, the first instance of any ethnic product being launched by H&M. Furthermore, another key highlight of this collection, Indian textile and print traditions brought to life by the Sabyasachi Art Foundation, meticulously crafted embroidery and multicultural silhouettes.

The Kolkata-based courtier, considered among India’s top designers has created his legacy in India when it comes to luxurious traditional clothing ranging from bridal lehengas and sarees. For the global audience, he created a similar line under the recent H&M collaboration. Although the outfits from the new drop were sold out just after it went online but the collaboration led to an outburst of disappointed fans on the internet.

The label ‘Sabyasachi’ has always preached authentic Indian textiles and empowerment through karigars (artisans). The latest collaboration of the designer with fast-fashion giant H&M received a lot of backlash on social media because the label Sabyasachi is synonymous with slow fashion and workers ethics. The collaboration with a fast-fashion brand that is time and again accused of exploiting its workers and harming the environment contradicted the basic vision of the Indian couturier Sabyasachi.

H&M has been accused by activists and environmentalists of breaking labour laws, abusing its textile workers, and harming the environment. According to research published by the Clean Clothes Campaign in July 2021, H&M was one of the brands that used the global pandemic as an excuse to cut workers’ wages, pushing them further into poverty.[1] Moreover, in 2018, Global Labour Justice conducted an investigation and found that many textile workers employed by H&M faced gender-based violence and sexual abuse at their factories.[2] Although H&M promised to pay fair compensation to its workers who work long hours to achieve deadlines, civic groups discovered that company did not follow through.[3]

Sabyasachi x H&M Collection

Time and again this fast-fashion retail chain has been scrutinised for its unethical practices, therefore, it led to huge disappointment when the label ‘Sabyasachi’ collaborated with a brand like H&M, which is known to have mismanagement in its supply chain. Further, many expressed the displeasure to see that the karigars of Sabyasachi (artisans) who are valued greatly in the creation of Indian Traditional Textile would sit by and watch their designs being cheaply mass produced. Sabyasachi is a firm believer in slow fashion, having founded his business on handlooms that can be passed down through generations. However, this collection seemed to be hypocritical because its neither sustainable nor empowering Indian artisans in any way. Sabyasachi grew as a cult brand based on the values of sustainability and ethical fashion but the new collaboration seemed like an attempt at greenwashing.

Defense from Sabyasachi:

View this post on Instagram

A post shared by Sabyasachi (@sabyasachiofficial)

After having witnessed the disappointment of the new collaboration, Sabyasachi Mukherjee released a statement apologising and stating that the label did not anticipate this response. Even after having the best team of forecasting, logistics and supply chain they did not comprehend this response. It was clarified that the entire motive for the collaboration was to create something for everyone. This is also meant to give unlimited access to the sacred Bengal Tiger Logo which we hold very close. Mukherjee concluded the statement with a promise to address the disappointments in future business models, meet everyone’s needs soon and spread the brand internationally.

Comments from shoppers:

‘While it is commendable that Sabyasachi has paved a new path for Indian fashion by globalizing ‘Designed In India’, decades after India was only known as a hub for manufacturing labour; it is difficult to ignore that it chose H&M for this collaboration. H&M has been infamous for being the flag bearer of fast fashion, and for putting India on the world map for fashion design, India’s star Sabyasachi should have taken the ethical route. Commenting on the standard of design is not even relevant, however good or bad it may be, but collaborating with a fast-fashion giant like H&M is putting out a distasteful message. At this point when fashion circles are bubbling with talks of sustainable and ethical fashion, Sabyasachi could have perused this opportunity and become a beacon of light for a sustainable fashion revolution in India. Although it would be unfair to put the burden of setting an example on a single entity, but keeping in mind Sabyasachi’s grandeur and scale, he could have used his status to propagate mindful fashion. It can only be hoped that this streak of Indian designers’ work being available across the globe is continued, albeit sustainably.’ – Virali Joisher

‘So with a name like Sabyasachi, we do expect something outstanding. However, it is a little more complicated in this case. The collaboration makes sense from a strictly business standpoint. The pandemic has harmed most sectors, including fashion. Having a fashion label is about demonstrating creativity and sustainability but not to forget it is also about making money. Furthermore, bringing out this collection provides work for karigars and tailors. Also, this is an attempt to make luxury more democratic in some way.

If we apply the definition of sustainable, the whole fashion industry should be abolished, because even production of a single garment is harmful to the environment.’ – Trishla Jain

At the end of the day, you have to decide for yourself what’s affordable to you, what you will keep in your closet for years to come, and whether you care deeply about the patronage of a certain craft, the environmental outcome of creating clothes, how nifty and carbon-free supply chains are, or whether you simply want clothes that fit and feel good.

References:

[1] H&M, Nike and Primark use pandemic to squeeze factory workers in production countries even more, Clean Clothes Campaign, available at: https://cleanclothes.org/news/2021/hm-nike-and-primark-use-pandemic-to-squeeze-factory-workers-in-production-countries-even-more (last visited 15 August 2021).

[2] H&M probes abuse at Indian factory after death of woman worker, Aljazeera, available at: https://www.aljazeera.com/economy/2021/2/2/hm-probes-abuse-at-indian-factory-after-death-of-woman-worker (last visited 15 August 2021).

[3] Kieran Giltbert, H&M accused of failing to ensure fair wages for global factory workers, Reuters, available at: https://www.reuters.com/article/us-workers-garment-abuse-idUSKCN1M41GR (last visited 15 August 2021).

Fashion Design & Imitation – Here Is How a Fashion Designer Can Protect The Designs Unofficially

Muskan Mahajan — Wed, 21 Jul 2021 14:56:52 +0000

“Imitation Is The Highest Form Of Flattery” – COCO CHANEL

The official Security Options:

THE UNOFFICIAL SECURITY OPTIONS:

Send your designs to yourself through email or upload them to your personal cloud storage (Gdrive/icloud/onedrive)

Postal Self-mail your designs

Install surveillance cameras in your office or conference room

Using the current date newspaper, take a picture of your designs

Select the design with the current date newspaper from the drop-down menu. Ensure that the date is apparent in the photo. This will serve as a record for future reference.

Have an IP clause in your job contract

Conclusion

Authors:

Muskan Mahajan, Legal Writer at Fashion Law Journal & Anuj Kumar, Editor-in-Chief, Fashion Law Journal

Amazon launches IP Accelerator programme in India to help businesses secure Trademark

Muskan Mahajan — Wed, 07 Jul 2021 08:40:50 +0000

Amazon announced the beginning of its Intellectual Property Accelerator (IP Accelerator) programme in India on 4 July 2021, which would give sellers who are also brand owners access to services from IP specialists and legal firms. This programme is already available in the US, Europe and Canada and according to Mary Beth Westmoreland who is the vice president, technology brand protection at Amazon, stated that they are very excited to offer this advantageous programme to Indian businesses.

The Intellectual Property Accelerator Programme helps businesses to secure their intellectual property, which means ensuring that everyone has a legitimate buying experience. The methodology to secure the IP under this programme is that the sellers including small and medium-sized businesses, can choose to work with these IP law firms on Amazon.in and Amazon websites around the world to help secure trademarks, safeguard their brands, and combat infringement.

IP Accelerator began in the United States in 2019 and has since grown to include Europe, Japan, Canada, Mexico, and now India. The excellent feedback received from the programme that was piloted in India last year led to its launching this year. Six IP law firms have signed up to be service providers as part of the IP Accelerator programme to serve Amazon.in sellers: Hasan and Singh, Lexorbis, Sujata Chaudhri IP Attorneys, Amitabha Sen & Co, Remfry & Sagar, and H K Acharya & Company.

The reason behind launching this programme is that firms of all sizes must establish IP rights, in order to differentiate their products, acquire customer trust, and develop their business. However, because the procedure is complex and time-consuming, many businesses drop out along the way. The IP Accelerator program’s introduction in India will assist lakhs of sellers, particularly small and medium sized businesses with new brands, in securing IP protection. The Trademark registry in India can take up to 18-24 months, as a result, many brand owners especially small and medium businesses find the process lengthy and time consume and hence, avoid the process. The IP Accelerator Program will assist businesses in navigating this process by linking them with reputable IP law firms that are subject matter experts in this industry and have drafted trademark and other IP registration applications.

Sellers on Amazon.in’s Service Provider Network (SPN) can use IP Accelerator, and there is no additional charge for accessing IP Accelerator company listings on SPN. The sellers will have the option of working directly and independently with the law firms for services of their choosing at mutually agreed terms.

With the expansion of market platforms, various brands are now considering the need for IP protection and the implementation of laws. The launch of the IP Accelerator programme by Amazon is a great initiative to help small and medium sized businesses with IP regulations. Similarly, Park Star Media, situated in the United States, is one of five firms selected for the accelerator programme, which aims to aid high-growth companies in the licencing market, thereby working to license original character IP. Moreover, Flipkart had launched ‘Flipkart leap’ which was the companies first start-up accelerator programme. Therefore, it is evident that these big companies are working towards helping small and medium businesses to grow and protect them in the giant market.

Mexico’s Accusations Of Cultural Appropriation – The Allegations On Zara, Anthropologie & Patowl

Muskan Mahajan — Wed, 02 Jun 2021 12:45:35 +0000

In recent years, the extent to which fashion designers have profited from incorporating cultural designs without giving due acknowledgment to their origin has been an amplifying point of contention. This issue is particularly high profile in Mexico, where many western brands have been imitating indigenous designs produced by poverty-stricken communities. These western brands sell these designs as ‘boho styles’ for hundreds or thousands of pounds without giving any credit to the origin of these designs.

Recently, the international Fashion brands Zara, Anthropologie and Patowl have been accused of cultural appropriation by Mexico. The Culture Ministry claimed that these brands have used patterns from indigenous groups in their designs without any benefit to the communities. The Ministry of Culture had sent letters, dated 13 May 2021, to the three companies signed by Alejandra Frausto, the culture minister, asking each for a public explanation on what basis they have privatise collective property.

The Ministry stated that these companies have taken inspiration from the south-western state of Oaxaca to create designs and therefore, called for benefits to be awarded to the communities behind the inspiration of such designs. In a series of letters written to the brand, the Mexico Ministry of Culture stated that these embroidery techniques and design motifs are created by the Country’s indigenous populations. They pinpointed several clothing items of these brands alongside corresponding examples of garments created by indigenous craftspeople from the Oaxaca region.

The blue embroidered midi dress by Zara was specifically taken into consideration by the Ministry of Culture and in a press release, it stated that the Spanish brand had drawn on the ancestral symbols and traditional ‘huipil’ dresses produced by the Mixtec people of San Juan Colorado, Mexico. In addition, it was stated that this design reflects the environment, history and worldview of the community and such dresses typically take a month to be created by the craftspeople. The above-mentioned item is now no longer available on Zara’s website for sale.

Similarly, Anthropologie’s sky blue, raw-hemmed pair of embroidered shorts came into the highlight as it was an alleged example of cultural appropriation. It was claimed by the Mexican government that this item features symbols reminiscent of those used by the Mixe community, in Santa Maria Tlahuitoltepec. The allegedly copied embroidery is a manifestation of identity, history, and relationship with the environment of the community. These shorts which nearly cost $70 are still available on Anthropologie’s website for sale. Moreover, the ‘casual flower’ shirts made by Patowl were said to have been inspired by the embroidery techniques of the Zapotec community of San Antonino Castillo Velasco. Therefore, it was alleged by the government that this handmade floral embroidery on Patowl’s shirt was an initiation of the complex technique known as “hazme si puedes” (‘make me if you can’) and include the community’s pansy motifs, among others.

In response to these allegations, Zara’s parent company, Inditex stated that it had the highest respect for the Ministry of Culture and the communities within Mexico. It further stated that the designs in question were in no way intentionally borrowed, copied or influenced by the artistry of the Mixtec people of Mexico. Further, the reply of allegations has not been responded to by Patowl and Anthropologie’s parent company URBN.

This is not the first time Mexico accused brands of appropriation. In November 2020, the French designer Isabel Marant had used a pattern created by the Purepecha community. According to BBC, Marant had offered her sincere apologies to the country’s Ministry of Culture and said that she would pay tribute to the sources of inspiration in future. Similarly, in 2019, an American womenswear brand Carolina Herrera was accused by the ministry for using Mexican patterns without any permission, respect or economic consideration. Later, the creative director Wes Gordon said in a statement to the Guardian that the brand aimed to highlight the magnificent cultural heritage and was a tribute to the richness of Mexican culture. Therefore, these actions are taken by the Ministry of Culture to prevent plagiarism by national and transnational companies and to protect the rights of native peoples who have historically been disregarded.