Presented by:

NISHANT KEWALRAMANI
Portfolio Manager
Brain League IP Services Pvt. Ltd.

© Brain League IP Services Pvt. Ltd.

Piracy Paradox

Copyright Protection

Design Protection

Trademark Protection

Patent 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
 Abercrombie and Fitch Ladder

• Fanciful
• Arbitrary
• Suggestive
• Descriptive
• Generic
 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 obvious

Rights - Use, Make, Sell, Offer for sale and

Import
 Designs taken from traditional sources

 Benefit sharing
FOR ANY QUERIES:

nishant@brainleague.com

THANK YOU!!!