[1] [3] Kal Raustiala and Christopher Sprigman ‘On

1 Black’s Law
Dictionary (Ninth Edition, 2009), p. 1266

2 http://www.latimes.com/news/la-oe-dilberto10oct10-story.html
accessed 8th September, 2017

3 Kal Raustiala
and Christopher Sprigman ‘On THE PIRACY PARADOX: INNOVATION AND
INTELLECTUAL PROPERTY IN FASHION DESIGN’ (2006) Viginia Law Review https://papers.ssrn.com/sol3/papers.cfm?abstract_id=878401 accessed 4th
September, 2017

4 The Copyright Act
1957, s 15

5 https://www.liveabout.com/the-history-of-jeans-2040397 accessed 9th
September, 2017

6 https://en.wikipedia.org/wiki/Fashion_boot#2000.E2.80.932017 accessed 9th
September, 2017

 

7 https://luxelookbook.me/2017/01/05/style-guide-11-major-trends-of-2017/ accessed 9th
September, 201

8 https://cleanclothes.org/resources/publications/factsheets/general-factsheet-garment-industry-february-2015.pdf accessed 7th
September, 2017

 

 

 

 

 

 

 

 

 

Every designer markets the apparel in their
own name or in the name of the Fashion House so the rightful owners are
recognized and ample credit is given to them for their work. Since the brands
serve to different classes of people and there is no scope of confusion. Therefore,
the copyists do not serve as a competition for the originators as it is the
trademark and the brand that confers a status on a design.

Usually there is nothing so immensely unique
about a design that only one particular person can come up with. The design
entails the cut of a sleeve or a floral pattern or the colour coral. There are
only a limited number of cuts and prints the designers have to work with. If
protection is granted on those attributes, then soon there will come a time
wherein no new design can be generated as fashion flows from one pattern to the
next. Older patterns are often used as references and some additional changes
are made to them so they feel comfortable yet unique. It will be a deterrent in
the route to creativity if the designers cannot be inspired.

Since copying often results in the marketing
of less expensive versions, thus the masses are able to get trendy clothes at a
fraction of the price, examples being H, Forever 21 and Zara; well-known
trademarked brands which bring the fashion from Milan into the hands of the
common consumer at reasonable prices. The big fashion houses such as Gucci and Valentino
come up with desirable apparel and market the products in such a nature that
the consumers desire them. Unfortunately, there are only a handful who can
afford them. Had there been proper IP protection, brands such as H would
not be able to copy the designs and hence the designs wouldn’t have been
available to the masses. In the present scenario, those who can afford the elite
fashion houses buy their products, and everyone else turns to the common chain
stores, which are selling similar designs. This has led to an increase in the
economy since everyone is now spending on their wants, at a level they can
afford, as well as gives a sense of self satisfaction and boosts the self
confidence amongst the masses that they are up to date with the prevalent trends.

 

The only problem in the low IP regime would
be immediate communication. As soon as the design is showcased on the runway,
photographs are sent all over and the copying process can begin almost
simultaneously. This situation of copying without a lag would be problematic as
early adopter consumers would like their design to remain exclusive for a
little while and also it might lead to competition for the originators. In
practical use, this problem doesn’t persist that much because, of all the
designs released, there are a few that gain popularity and a few that are
dismissed. The copyists would have to wait a while to observe the fashion
trends and do a market analysis to gain insight on what is being desired by the
masses and accurately gauge the situation; thereafter reproduce the desired
designs.

 

Induced obsolescence and anchoring help
explain why the fashion industry’s low-IP regime has been politically stable
and successful and how it is benefitting to the designers and the fashion
houses. It globally values 1.7 trillion USD 8.
More fashion goods are consumed in a low-IP world than would be consumed in a
world of high IP protection precisely because copying rapidly reduces the
status premium conveyed by new apparel and accessory designs, leading
status-seekers to renew the hunt for the next new thing.

If the fashion industry is to successfully
maintain a cycle of induced obsolescence by introducing new styles each season,
it must communicate to the consumers when the styles have changed. A low-IP
regime helps the industry establish trends via a process referred to as
anchoring. The industry produces a variety of designs which are somewhat
related to each other and defines the season’s trends. This level of design
coherence and direction is gained through copying. Designers refer to each other
and accelerate the season’s themes so it is clearly visible to the consumers
whether a particular apparel belongs to a season. Anchoring thus encourages
consumption by conveying to consumers important information about the season’s dominant
styles, for example, stripes, Bandeaus, floral, puffy
sleeves and mules were the trends of Spring 20177

 

Anchoring

 

The early adopters move to a new mode; those
new designs become fashionable, are copied, and diffused outside the
early-adopter group. Then, the process begins again. If copying were illegal,
the fashion cycle would occur very slowly. In short, piracy paradoxically
benefits designers by inducing more rapid turnover and additional sales. It
also leads to a greater platform for creative energy.

–       Skirts- in 2005, Long flare skirts were very
popular amongst Indian women. This lasted for about 2 years and the trend
disappeared in 2007.

–       Boots- In 2009, thigh high boots were seen on
the runways and rampantly followed; which led to a change in 2011 wherein ankle
boots became the trend.6

–       Jeans- Bell Bottom Jeans gave way to skinny
jeans in 2006 which was continued and became so common that a new trend of
“boyfriend jeans” came about in 2014.5

Some examples being of diffused trends:

Clothing is a status-conferring good. Most
forms of apparel are “positional goods.” These are goods whose value is closely
tied to the perception that they are valued by others; what we buy is partially
a function of what others buy. The desirability may rise as some possess it,
but then subsequently fall as more possess it. Particular clothing styles and
brands confer prestige. A particular dress or handbag from Gucci or Prada has
value, in part, because fashionable people have it. It confers an elite status
on the owner. For the class of fashion early-adopters, the mere fact that a
design is widely diffused is typically enough to diminish its value. It can no
longer signify status if it widely adopted.

Induced
obsolescence

There are predominantly two interrelated
theories that are foundational to the continuing viability of fashion’s low-IP
equilibrium, relating to the economies of fashion.

Piracy is considered paradoxically beneficial
for the fashion industry as even when originators that suffer harm may not be
strongly incentivized to break free of the low-IP equilibrium because, often,
they are also copyists. Being a copyist and an originator is relative. The
house that sets the trend one season may be following it the next and in a
world with more than two designers, one is more likely, over time, to be a
copyist than to be copied. Original ideas are few, and more often than not,
ideas are reworked and reincorporated. Often the industry calls it
“referencing”.

 

India does not cater to recognizing fashion
apparel as intellectual property. The designs may be registered under the
Designs Act, but the registration requires an average of 12 months and the
fashion industry is too progressive for such a time period, with designs
changing every 6 months. If a designer endeavours to get a copyright, he cannot
reproduce the particular design more than 50 times which is highly improbable. 4

 

“Being copied is the ransom of success”, Coco Chanel once said.2
Copying has been rampant since the earliest of times. It dates back to the 18th
century, when seamstresses at the Court of Versailles tried to bribe Marie
Antoinette’s dress maker to find out what she would wear next. In 1978, the
J.P. Tod firm marketed a shoe called the “Gommino,” a leather moccasin with a
sole made of rubber “pebbles.” In the mid-2000s, when dozens of shoe designers began
marketing their own versions of shoes with rubber “pebbles” as the design did
not have protection.3

The fashion industry is interesting because
it is part of IP’s “negative space.” It is a substantial area of creativity
into which copyright and patent do not penetrate and for which trademark
provides only very limited protection. Piracy is “the unauthorized and illegal
reproduction or distribution of materials protected by copyright, patent, or
trademark law”.1 In the
context of fashion industry, piracy includes: (1) piracy in fashion design
& (2) piracy in logo or label of fashion brand. Fashion design piracy
occurs when the designs of a particular designer or brand have been copied and
incorporated by other designers in their lines. This article shall look into
the design piracy and gauge why this industry is a growing success even with a
low IP regime.