presentation on intellectual property and fashion industry
DESCRIPTION
Presentation on Intellectual Property and Fashion Industry by Nishant KewalramaniTRANSCRIPT
Presented by:NISHANT KEWALRAMANI
Portfolio ManagerBrain League IP Services Pvt. Ltd.
© Brain League IP Services Pvt. Ltd.
Piracy ParadoxPiracy Paradox
Copyright ProtectionCopyright Protection
Design ProtectionDesign Protection
Trademark ProtectionTrademark Protection
Patent ProtectionPatent Protection
Concept given by Kal Raustiala & Christopher Jon Sprigman
Piracy is a boon for the Fashion Industry.
The piracy paradox encompasses two concepts:
◦ Induced Obsolescence◦ Anchoring
Induced Obsolescence-◦ As design spreads its positional value grows.◦ Exhaustion by popularity paves way for new
designs.
Anchoring-◦ Latest trend communicated by flooding market.
COMBINATION OF TWO WORDS
•Idea/Expression Dichotomy
•Tangible Form
•Originality and Modicum of creativity
•Subject matter - Literary, Dramatic, Artistic, Musical, Cinematographic, Photographic and Sound Recording works.
•Term - Life plus 60 years
Applied art protected◦ Jewellery design◦ Patterns on clothes
Useful articles not protected◦ Clothing design not protected
Mazer v. Stein◦ Balinese statuettes used as base for lamps◦ Protected or not?◦ Test:
The aesthetic elements of an article can be separated from the utility or function of the article.
◦ Court said protectable as copyright.
Such severability not possible in case of cloth design but possible for patterns on clothes.
Mass production takes away copyright protection gets into design protection (50 articles in India)
Protects only expression
Modicum of creativity required
Substantial similarity not an objective test
Aesthetic appearance of an article
Term 15 years (10+5)
Ornamental features should be novel- bell bottoms example
Design- Copyright tussle
Ornamental characteristics to be separated from functional characteristics.
If the design is a direct result of the function then such a design is not protected.
Cloth designs??? Shoe and accessories designs???
Any indication that uniquely identifies a source of products
Distinguishing one source of goods from another
Consumers perspective
© Brain League IP Services Pvt. Ltd
Nike
Armani
Louis Vuitton
• Fanciful• Arbitrary• Suggestive• Descriptive• Generic
Abercrombie and Fitch Ladder
Confusing similarity◦ Likelihood of confusion◦ Louis Vuitton v. S Malik CS case- Delhi HC
Epi leather trademark
Dilution◦ Blurring◦ Tarnishment
Fair Use
Unique design or packaging of a product
Walmart sotres v. Samara Bros.◦ Children clothing- knockoff one piece seersucker
outfit
Secondary meaning required
Subject Matter - Inventions Term - 20 years
Requirements New Useful Non obviousRights - Use, Make, Sell, Offer for sale and
Import
Designs taken from traditional sources
Benefit sharing