Fashion. The word has gotten under everyone’s skin to an extent that the word denotes more than just a noun. Oh! I am old fashioned. She is fashionable. Maintain the same fashion in your work. This is a different fashion. One word yet so many contexts. That brings one to the question as to what Fashion is and this went on to become an industry and is now a point of discussion with the respect to its need for definite laws. 

Fashion: 

Fashion can broadly be defined as a prevailing style during a particular time. The editorial policy of Fashion Theory defined fashion as a cultural construction of the embodied identity.

Nowhere is the definition confined to clothes and accessories. It could be anything. Why then do people immediately think of clothes and accessories when it comes to fashion? The first time most people heard of this word during the 90s was in our televisions as FTV. As kids, everyone had a fascination as to what this immensely intriguing concept of people walking on the ramp would be. After all these years fashion is still by some connected with fashion shows and fashionable clothes.  

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A very significant component of the fashion industry is innovation. Although innovation abounds, helping brands reach locations, counterfeit fashion items, on the other hand, pose a challenge to the fashion industry. In particular, the fashion industry is afflicted by many scandals, such as counterfeiting or removing designs from common works and placing them in some other product, causing the rights of the original rightful owners to be violated. 

FASHION INDUSTRY AND INTELLECTUAL PROPERTY RIGHTS

Intellectual property rights can in simple words be defined as rights that protect a product which is the outcome of a person’s intellect. Hence, designs that are created by fashion designers are their intellectual creations and the law seeks to protect such creations. Intellectual property rights in India seek to protect the fashion industry.

Current Scenario: 

Laws governing the fashion industry:

Copyrights act is a protection given to the drawings on a garment that are not confined to the shape or design of the garment. The tiniest of the details are subject to counterfeits. For instance, woodland shoes have certain intricate details that are quite different from the fake products that look the same. Eventually, when people learned of this, every small thing was copied. Levis jeans having a certain number of stitches or a branded watch having a specific number of stones inside the dial are all such details that are now included under the shelter of copyrights. 

The design act as the name suggests is about the design or shape of the garment concerning its fabric and unique tailoring pattern. The first and the most famous instance when the copyrights issue came into light was when a designer named Rohit Bal got copyrights over his entire clothing collection. Every designer today has copyrights over his/her designs.

Every designer be it famous or infamous, global or local would have the same apprehension about the continuance of his exclusivity.

In Ritika Private Limited v. Biba Apparels Private Limted[2], the designer of a boutique filed a suit against people who tried to prevent their printing, publishing, selling, and offering of prints for which the plaintiff was the owner. This was a very important case that detangled the complicated web of copyrights act and designs act wherein the court has given a clear explanation as to how both the acts are different from each other. It was held in the case that the copyrights act covered only the original expression of what can be called artistic work and can only protect the designer from commercial exploitation of their work. On the other hand, the designs act included protection from the industrial application of their work. 

The fashion industry concerning design and copyrights has numerous laws. Yet these regulations have failed in combatting challenges faced by fashion designers. There is hence a need for definite laws in the fashion industry. The existing laws only work towards preserving the exclusivity of fashion apparel. As mentioned earlier, the scope of fashion industry goes further. The following changes can help in making the fashion industry a better and safer place for both the buyer and the seller.

1. Amending the laws in a way that the purchaser is liable for the counterfeits. Often it is seen that people would knowingly purchase smuggled clothes to save money. As long as the buyer buys smuggled or copied goods for a lesser value, people will keep coming up with new ways to break the laws to make easy money.

2. The laws that govern Intellectual Property Rights seek to protect the original products. But seeking and doing are two different things. The problem is, the laws seek to protect originality but are not stringent enough for people to think twice before committing the offence of lifting someone else’s designs. Through this, counterfeiting may be limited if not prevented.

3. The most important issue in the entire realm of fashion laws is the lack of awareness. The designers must be informed and sensitized about the need to protect their property in a way that can shield their exclusivity from any kind of further challenges. 

4. The second most important issue is to create awareness among the general public. Public or consumers must be sensitized about identifying fake goods and the repercussions of encouraging counterfeit goods.

Fashion. Is fashion about the design? Just about the design? Well, No. It isn’t about the design and the laws that regulate the counterfeiting of designs. The fashion industry is more than just the originality of how a piece of cloth looks like. It is undeniably the most challenging factor in the fashion industry. The only issue one thinks of when there is a question regarding the need for laws in the fashion industry is ‘THE DESIGN’.

So what else is the fashion industry? Let’s breakdown the design process. Design is something a fashion designer comes up with. The idea is put into the process. This process is manufacturing. Once the manufacturing is done, the products go into the market. One simply does not make garments and sells them in shops. There is an organized process involved in this. This is fashion merchandising. Most people confuse fashion merchandising with fashion design. What a designer makes is the design and how they sell it is merchandising. This is the simplest way to put it. The question now is why do we need laws in the merchandising industry. This is the most neglected area in the fashion industry. We often hear of things like factory sale hence 20% off, first copy 30% off. This is where the merchandising part is reflected. 

Fashion merchandising refers to the strategic analysis, marketing, management, and distribution of fashion products to maximize profits. A fashion merchandiser provides valuable input on the types of fabrics used to produce a piece of clothing. It helps to turn the vision of a designer into reality by providing a clear historical and socio-cultural understanding of the fabrics. By applying the knowledge of fabric and clothing construction, a fashion merchandiser takes the piece of a designer and explores the best way to produce the object, taking into account items such as price and target market at the same time. When a merchandiser purchases fashion pieces to be presented in a shop, buying becomes part of fashion merchandising. If a fashion merchandiser works for the manufacturer, it is a number one priority position to sell the designer’s goods to stores that may want to purchase large quantities. Not only is the fashion merchandiser needed to have a creative mind and good visual merchandising abilities, the production abilities must also be sharp. By using fashion shows where creations and visual effects are amplified to catch the interest of prospective customers, fashion merchandising promotes a designer’s pieces. Besides, fashion merchandisers search out the target market for clothes for a designer, such as clothing stores for girls, department stores or discount retailers. 

Further categorization in fashion merchandising[4]:

1.Product merchandising: Promotional activities that are used to sell a product. Product merchandising could either be in-store or online products.

2.Visual Merchandising: All the display techniques used to highlight the appearance and benefits of the products and services being sold.

3.Retail Merchandising: Promotional and marketing activities that in some way contribute to selling products to customers in a physical retail store.

4. Digital Merchandising: All the promotional activities used to sell a particular product online. 5.  Omnichannel Merchandising: Creating a unified customer experience across all possible touchpoints of the customer journey. Omnichannel merchandising involves creating a seamless customer experience—even if the customer moves from one to the other.

Need for definite laws in the fashion and merchandising industry

As mentioned earlier, this is the most ignored sphere in the fashion industry. 

The biggest challenge is the non-applicability of Intellectual Property Rights to the whole of marketing and merchandising. While there are advertising laws and various cyber laws when it comes to e-commerce, there are no well-defined laws that can govern the merchandising process. When it comes to design there are two parties but when it comes to merchandising there is an additional party if the person who is supplying is not the one who is selling. The complexity in the process makes it challenging for regulating the industry.

Quite often we see people selling clothes on the footpaths. Would these come under counterfeiting or merchandising? This comes under the purview of merchandising. Selling clothes in a particular place with the rating board involves strategy and planning. For instance, let’s talk about the famous Sarojini market in New Delhi. What goes on there is not exactly counterfeiting but that is fashion merchandising. They have strategies for selling goods at a cheaper price using their tactics. Can we book them under laws that govern IPR? We certainly cannot. That is their marketing strategy. They sell shoes that look like a puma with the name poma. They have not violated the copyrights act but they have caused a certain amount of loss to the puma manufacturers by cashing their fame. All this is fashion merchandising. The real question is, should we completely curtail such strategies? 

Let’s look at it this way. I would want to buy shoes that look like Adidas but I cannot afford to buy them. I go to the market looking for similar designs but of lesser price. I find a shop that matches my requirement. People sell the same design as others for two reasons. One, he does not have money to hire designers hence he employs tailors who can do the work at a lesser price. Two, the shop does not have any recognition of its owner hence the owner has to bring in something in trend. Now, I got what I wanted and he got what he wanted. Can we call this a win-win situation or should we call it stealing the originality of someone else? Would people buy expensive clothes when they can find the same at a much lesser value? The answer could be a yes or a no. I might still want to go and buy the same lehenga from Sabyasachi though the same would be available in other shops. Some might just get the same one stitched from a local market. All this boils down to the issue of right or wrong. This is subject to interpretations and personal opinions. But at the end of the day, it is undoubtedly stealing someone’s originality. Hence, no amount of guilty pleasure can be called out as an excuse to imitating or lifting someone’s design. Strict rules are necessary to curtail such merchandising. 

Now that we have discussed the aspect of design and merchandising, it is important to shed some light on what products should be sold. When the designer and the seller are two different parties, maximum care has to be taken while goods are given to the designers. While IPR protects the sellers there are limited laws that seek to protect the sellers. Strict laws should be made to protect the rights of the sellers or intermediate parties.

Online shopping. We come, we see, we buy. Rarely do we check the authenticity of what we buy. It is difficult to check the originality of online products. Hence, strict laws that are beyond just ‘return and refund policy’ should be brought in.

Social Media is a new e-commerce platform. With celebrities and tik-tokers promoting clothing websites, it is easy to commit fraud. One cannot blame the ones who promote. The exactly is the issue. Strict laws should be brought in that can regulate such advertising of products and websites. 

Above all, the most important issue is profit maximization. Profits should be maximized to the ones who deserve it. The best example to mention in this regard is weavers. It is often seen how the middlemen give them tens or hundreds and sell them for thousands and lakhs if the cloth is handwoven or a specific kind of silk.

All said and done, where there is a market, there is always scope for fraud and exploitation. For this to be minimized, definite laws must be made in the merchandise industry.

Conclusion

The textiles sector is one of the largest and the oldest sectors India. India has over the years witnessed unprecedented growth in the fashion industry. While abundant raw materials are one reason, skilled workforce who can beautifully carve what is raw into what can be worn is another reason. All thanks to globalization consumerism have been on the rise. Owing to this reason and coupling that with the rise in disposable income, the retail sector in India has witnessed rapid growth over the past few decades with the entry of international players like Zara, Nautica, and others into the Indian market. With people’s fascination with and idolizing of film stars, whatever they wear or endorse becomes so trendy that people dream of owning them. Hence, it can with ease be inferred that the film industry is and has been a mascot of promoting the fashion industry. In a country like ours with such a huge textile industry, the need for laws is the bare minimum. The paper with regards to the need for laws is divided into two parts for a reason. The reason is that, though merchandising and design are both two very important factors in the fashion industry, there is no unified law that protects them both.

The division is intended to reflect the importance of definite law in the fashion merchandising industry. With some countries having unofficial fashion ministers, it is high time India comes up with a separate unified law that governs the fashion industry if not having an entire ministry.

Kothari, V. R. (2013, October 11). Introduction to fashion merchandising. Retrieved from Textile Today.

Merchandising Types and Examples. (n.d.). Retrieved from Reflektion.

Narula, S. B. (2018). India: Fashion Law in India. Mondaq.

Ritika Private Limited vs Biba Apparels Private Limited, 182/2011 (Delhi High Court March 23, 2016).