THE INDIAN COUNTERFEIT CULTURE- FAKING IT IS MAKING IT?

It is virtually impossible to walk into a wedding store in Chandni Chowk and not hear the term “original copy of xyz high fashion brand”. In fact, one will find the shop keeper boasting about how well-copied the product is. There is usually a first copy which costs more than the second copy, and consumers can also find a much cheaper third copy of the same designer wear. This type of counterfeit is referred to as non-deceptive counterfeit. Herein, the buyer is well aware that the product in question is not an original but a knock off. There is also a deceptive counterfeit wherein the buyer confuses the fake product to be an original and buys it under such deception. In India however, the former is more common than the latter.

In an article on “Why Most Indians Purchase Counterfeits”, students from O. P. Jindal University analyzed consumer behaviour and concluded social motivation, value for money and the transient nature of fashion trends as being major factors.[i] This last factor is further flared by social media influencers deciding what is trendy and what is out of fashion. Speaking of social media, let us explore another major role it plays in the counterfeit culture.

It is no news that the counterfeit culture has taken the fashion world by storm. However, the boom that has been witnessed with social media becoming its beacon is alarming to many haute couture and luxury brands. Analytics firm Ghost data in its 2019 report titled “Instagram and Counterfeiting in 2019: New features, Old problems” has discovered nearly 20% of all posts about fashion products on the portal to be displaying counterfeit products. It has recorded 171% hike in the number of accounts selling counterfeit fashion products from its 2016 study.[ii] Therefore, social media is not only deciding what’s trendy but also acting as a mall for counterfeits.

Designers and major luxury brands have taken matters to court many a times. Anita Dongre, a major ethnic wear design label, sued a store in Chandni Chowk for infringement of her registered designs. The Delhi High Court gave ex–parte ad interim injunction orders restraining the store from manufacturing or dealing in any kind of garment, lehenga etc.[iii]

In Louis Vuitton Malletier vs. Iqbal Singh And Others 2019[iv], the High Court of Delhi found the defendants guilty of infringement of their trademarks “Louis Vuitton” and “LV” and provided immediate relief to the plaintiffs. In Christian Louboutin SAS v. Abubaker[v], the same court also granted an ex parte injunction order against the defendants using red sole in their shoes that was declared as an iconic trademark of Louboutin.

Another case that was doing the media rounds not long ago was People Tree v. Dior, where the French haute couture label was accused of plagiarizing a block print created and sold by a design studio from India. The case was certainly in favour of the People Tree and Dior eventually reached for an out-of-court settlement with the studio.[vi] This case did not just become infamous for IP infringement but also cultural appropriation.

Several IP experts have pointed out that a major problem most designers find themselves in is being unaware of the laws that apply to them and their creations. However, one can notice a clear shift of trend here. It seems that after learning from other’s as well as their own mistakes, Indian designers are waking up to acknowledge the need for them to be aware of their IP rights. When it comes to basic awareness of IP and taking the first step, it is no more just a lawyer’s game and the designers seem to know it now. This is evident from the fact that more and more designers like Rohit Bal and Anita Dongre have started to copyright their creations. Rohit Bal became the first Indian designer to copyright his entire collection. Sabyasachi Mukherjee, the world-famous wedding and ethnic wear designer, has received the National IP Award for being the designer with the highest number of copyrights with over 700 of his designs copyrighted as of 2018.

The Copyright Act, 1957[vii] and the Designs Act, 2000[viii] provide designers the option to copyright designs applied to clothes. Under Section 11 of the Designs Act, a registered design is copyrighted for a period of 10 years from the date of registration of the design. The copyright protection can be further extended for five years. Piracy of a registered design is prohibited under section 22 of the Designs Act – this makes it unlawful for a person to apply the registered design or any “fraudulent of obvious imitation” of the design to any class of articles in respect of which the design has been registered. Under section 22 of the Copyright Act, the term of protection granted to copyright-holders subsists during the life of the copyright-owner and for 60 years thereafter. According to section 15 (1) of the Copyright Act, protection under the Copyright Act is not applicable to designs which are registered under the Designs Act. Therefore, once a clothes’ design is registered under the Designs Act, the Copyright Act will not apply to it and the work will only enjoy protection under the Designs Act. If a design (which is capable of being registered under the Designs Act) has not been registered, it will be protected under section 15(2) of the Copyright Act; however, the copyright protection will expire on an unregistered design if the design has been reproduced on more than 50 articles.

With an increase in awareness and registration of copyrights, the next step seems adoption of latest technology to protect these luxury brands from losing out on their business or reputation. Virtual QR Codes are being widely used by brands to activate coupons, find out if a product is available in a particular size and even to ascertain the authenticity of a product. I believe this could be a new revolution in the fashion industry if customers could scan the code on a piece of clothing from their mobile phones and ascertain whether it is an original or a knock off. Coca-Cola is already doing it and if it works in the food and beverages industry, what is to say it will not have a similar affect on the fashion industry. The same is true of Radio Frequency Identification (RFID) tags that can provide similar verification through scanning.

Moreover, it is imperative for design institutes to include basic Intellectual Property rights into their curriculum if we want our designers to be able to protect themselves from being plagiarised. Drafting laws to protect people’s rights is not enough unless they are made aware of these rights and the specifications that lie therein. It is evident from cases like Ritu Kumar v. Biba[ix] that half information can be as harmful as no information.

[i] https://www.fortuneindia.com/opinion/why-most-indians-purchase-counterfeits/103166

[ii] https://ghostdata.io/report/Instagram_Counterfeiting_GD.pdf

[iii] https://www.asianage.com/age-on-sunday/080320/fashion-designers-cut-copycats-down-to-size.html

[iv] Louis Vuitton Malletier v. Iqbal Singh CS(COMM) 607/2018

[v] Christian Louboutin SAS v. Abubaker & Ors. RFA (OS)(COMM) 13/2018 & CM 29064/2018

[vi] People Tree signed a non-disclosure agreement and no details of the settlement were made public.

[vii] The Copyright Act, 1957 Sections 22, 15(1) & 15(2)

[viii] The Designs Act 2000 Sections 11 & 22

[ix] Ritika Pvt. Ltd. V. Biba Apparels Pvt. Ltd. CS(OS) No. 182/2011

 

*This Article Submitted by : Antika Priyadarshi, As a Part of Internship under the IPR chair. 

 

 

 

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