Authored By: Muhammad Rameez Amjad
DITE
Abstract:
This article is based mainly answering the question, Does Intellectual Property Organization of Pakistan Act 2012 protect fashion designs from being copied and commercially utilized?. This issue needed to be given importance, due to the growing economy of Pakistan’s textile and fashion industries, it faces issues of counterfeiting products, unauthorized use of brand’s name, imitation of designs and much more, which needed legal protection. This articles also addresses how even after combination of various laws such as Copyright Ordinance 1962, the Registered Designs Ordinance 2000, and the Trade Marks Ordinance 2001, together with relevant judicial decisions, including Mehnaz Mirza Malik v Bilal Embroidery case and Al-Karam Textile Mills v. Mehtab Chawala. The lack of protection remains unchanged. Despite various intellectual property protections being provided, the existing legal framework protects brand identity and commercial goodwill instead of fashion designs. The article concludes that the current legal framework fails to provide full protection as compared to European Union Community Design Rights and also requires stronger design protection oriented reforms.
Keywords:
Fashion Design Protection, Intellectual Property Organization of Pakistan, Copyright Ordinance 1962, Registered Designs Ordinance 2000, Trade Marks Ordinance 2001.
Introduction:
Pakistan’s fashion and textile industry is an important component of its economy, influenced by international fashion trends, digital markets, and brand-oriented consumers. Currently Clothes do not hold the actual value but creative design, branding, and identity holds it. This raises the question on Pakistan’s intellectual property laws, that are strong enough to protect fashion creativity?.
Despite, fashion sector being important, Pakistan fails to provide dedicated legal frameworks protecting fashion designs. Instead of a single law protecting the fashion industry completely, protection is scattered among, Copyright Ordinance 1962, the Registered Designs Ordinance 2000, and the Trademarks Ordinance 2001 and in some judicial ratio decidendi, providing a partial protection against design exploitations.
The article addresses the issue of whether the current Pakistan intellectual property framework effectively protects fashion designs against imitation, unauthorized commercial use, and copying, whether it protects brand identity or brands creative designs. In cases of Mehnaz Mirza Malik v Bilal Embroidery case and Al-Karam Textile Mills v. Mehtab Chawala, it reflected that protection is given to trademarks, goodwill and brand’s image rather than protecting the creativity itself, making law to be more brand oriented instead of design oriented.
The following section of the articles analyzes the legal framework, evaluating judicial interpretations and assessing the effectiveness of existing frameworks in relation to addressing fashion design protection in Pakistan.
Background and Conceptual Framework:
As the fashion industry is growing, it needs protection, a law which protects creators, design, clothing structure, patterns and creativity. Preventing them from being copied and used commercially. Some jurisdictions which have dedicated laws for fashion related protection such as European Union Community Design Rights, which protects appearance of a product from being copied, including shape, cuts, design, pattern and much more related to that product. Unlike those jurisdictions, Pakistan does not have a dedicated law for fashion, instead the protection is divided into different intellectual property laws each covering a specific part of the fashion industry.
For protection of artistic work of designers Copyright Ordinance 1962 comes in. This ordinance protects the artistic work of the creator, extending its protection to textile prints, embroidery patterns, sketches, and graphic designs applied to clothing products. However it fails to protect the practical features, overall the structure of it.
For structure to be protected there exists Registered Designs Ordinance 2000, which protects the visual aspects of the product, including configuration, ornamentations, structure. It grants the owner the rights to use its creation and prevent it from being copied, there exists strict requirements that makes it harder to access those protection such as the product has to be new, original, and registered. This protection lasts for a limited period of time.
These designers have brands, which are protected under Trademarks Ordinance 2001. This allows the designer to protect its brand name, logo, labels, those elements which gives the brand its identity. In the fashion industry, brand reputation is considered more valuable than the design they produce. As consumer purchasing decisions are heavily influenced by brand recognition. It can be seen in many disputes that are not related to designs being copied but instead their brand identity being unlawfully used.
Intellectual Property Organization of Pakistan is the government body responsible for administration, registration, coordination, and enforcement of intellectual property rights in Pakistan.
The current intellectual property framework is not fast enough to keep up with fashion trends as there is constant change in trends, change in consumer preference. Traditional frameworks do not effectively protect fashion designers as legal processes consume time, indicating to be assessed in relation to modern realities of the fashion industry.
Legal Analysis:
In Pakistan protection of fashion designs depends on a combination of Trade Marks Ordinance 2001, Copyright Ordinance 1962, Registered Designs Ordinance 2000, Patents Ordinance 2000, Common-law passing off principles. However, these regimes are not provided in a comprehensive manner but rather they are scattered.
For a designer Registered Design Ordinance 2000, seems to be the suitable solution for protection of his designs, as the ordinance deals with protection of visual appearance of the product such as the shape, configuration, pattern and ornamentation. This ordinance allows designers the right to prevent any unauthorized copying of the original designs. But the issue was that the life cycle of a product design is very short some may last for a season and rapid change in trends makes the design to be obsolete, as a designer registering the design would be of no benefit as the registering a design would require fee payment and time, in order for the design to be officially registered.
Most of the designers do not utilize this right as they believe it to be time-consuming and expensive, along with that it fails to provide protection for textile prints, fabric patterns, embroidery designs, logos and more. For these to be protected there is a separate law called Copyright Ordinance 1962. This allows the designers to protect the original expression but this ordinance lacks the capability to protect the functionality of the clothing. Meaning that designers are able to protect the design they have created but fail to protect the overall structure of clothing from being copied. This includes the outlines, stitching style and design language of the clothing. This means that the Copyright Ordinance cannot restrict anyone from copying the whole idea of the original designer excluding the exact print design. This is mainly because the relevant section under the Copyright Ordinance 1962, (Section, 2(c),3,10,13) shows that protection is limited to original artistic expression, not the idea or functionality of the product.
Even though the Copyright Ordinance provides protection for artistic work, there still remains a huge gap in protecting the design language of the product. Most of the value generated is not through the design but overall the design of the clothing itself. Designer’s innovation may lie in the structure rather than the artistic work of the clothing. By limiting the law to be applicable on artistic work, designers may not get full protection over their creativity. This raises the question of what if full protection is given. If full protection is given this will create a monopoly over clothing styles, this is prevented as law ensures fairness among the interests of the creators and the public. An argument can also be raised that if there is less protection then it may discourage designers to innovate and discourage them to bring new innovation into the market.
It can be seen that the trademark has been the most effective tool for protecting fashion related interests in Pakistan. This is because businesses heavily rely on their brand names and reputation and courts are more familiar with it. This can be evident from the Mehnaz Mirza Malik v Bilal Embroidery & Others case where the dispute was concerned about the trademark and commercial reputation. The decision set by the courts indicates that courts are more willing to intervene where a brand’s image is being threatened instead where designs have been copied. This is not just about any one of the cases but rather this is something which can be seen throughout the fashion industry. This is mainly because consumers don’t buy products because of their distinct designs but for the brand name associated with it. Consumers trust the quality provided by a well recognized brand as compared to relatively unknown brands. Brands often have a higher commercial value than the design itself. This makes the use of Trade Marks Ordinance the best method to protect their reputation and name.
Although Trade Marks Ordinance looks like the perfect choice for famous brands, what about new designers?. Trademark protects commercial identity not creativity. A new designer who’s not famous, innovates a new style of garment and gets copied. New designers would struggle the most to stop its creation from being copied as there exists no strong trademark, no established goodwill. Here a well established brand would have an edge as compared to any new designer, as a famous brand would have substantial legal protection because of their reputation, even if the design is not that distinct. This creates an imbalance between established brands and emerging designers. The law protects market recognition more than artistic innovations. In the case of Al-Karam Textile Mills (Pvt.) Ltd. v Mehtab Chawala & Others, the courts highlighted the importance of goodwill and prior use in determining trademark rights. This shows that Pakistan’s courts effectively protect goodwill, image and trademarks but not necessarily protect creative fashion designs. Which concludes that law tends to protect established brands instead of individual innovation.
Another issue is concerned with enforcement of intellectual property rights. Weak enforcement, delay in justice being delivered, widespread counterfeiting, significantly undermines the practical value of those rights. The current Pakistani legal framework provides partial protection to fashion designs. Even after a combination of Trade Marks Ordinance 2001, Copyright Ordinance 1962, Registered Designs Ordinance 2000, Common-law passing off principles, they fail to provide complete protection. Judicial practices also indicate that goodwill and trademark is being protected instead of creativity, indicating the need for stronger reforms aiming at better enforcement, encouraging creativity, maintaining competition and better legal mechanisms.
Case Law Discussion:
In the Mehnaz Mirza Malik v Bilal Embroidery & Others Case, there were two parties who were using a well-known Pakistani fashion brand named “Baroque”. Plaintiff argued that it had established goodwill and reputation while the use of her brand name by the defendant would confuse the consumers, as they might believe that the defendant’s product originated from the genuine Baroque brand. This case deals with the issue of trademark infringement, passing off and misappropriation of goodwill. The Sindh high court gave reasoning in reflection of the objectives of the Trade Marks Ordinance 2001, by protecting proprietary interests in commercial identifiers and preventing consumer confusions. This was done through granting protection to the registered owner of “Baroque” trademark which effectively strengthened the principle that registration creates a prima facie legal entitlement enforceable against unauthorized users. The court decided to restrain the defendant from using “Baroque” as the plaintiff was successful in showing a strong registered right and a risk of confusion among the consumers. However, the final judgement did not show the final decision on the ownership dispute, despite that the courts will act quick in protecting fashion brands at an interim stage and trademark registration through Intellectual Property Organization of Pakistan Act 2012, providing valuable evidence of ownership and strengthens enforcement efforts against infringers.
There is another which can be discussed which is Al-Karam Textile Mills (Pvt.) Ltd. v. Mehtab Chawala and Others (2007 CLD 966), in this plaintiff Al-Karam Textile Mills (Pvt.) Ltd, filed an injunction claiming that the defendant was using “Al-Karam Textile”, even after they had the trademark rights. In defence, the defendant argued that the name was being used since 1985, long before the plaintiff pursued to enforce its trademark rights. The legal issue here was whether a registered trademark owner can restrain another party from using a similar mark, even when that party establishes prior honest and continuous use of the mark. The Sindh High court was in the defendant’s favour and refused to grant an injunction. The legal principle set was that a registered owner of a trademark cannot restrict a prior bona fide user from an identical mark. Rights acquired through honest and continuous prior use may prevail over rights arising solely from trademark registration. This case shows the significance of the registration of trademarks, that a brand should register its mark as early as possible to protect it from those who tried to copy it, at the same time courts will also protect businesses that have been honestly running under the brand name for years, even if another company later registers the same brand name. This shows that the courts will not only make decisions considering trademark registration but also business reputation, passing off, prior use of brand name and other factors. Therefore, the case helps explain how fashion and textile brands can protect their identity and reputation under Intellectual Property Organization of Pakistan Act.
Critical Analysis and Findings:
After analysing Intellectual Property Organization of Pakistan Act 2012, it reveals that Pakistan do provide various methods to protect fashion designs but there still remain some limitations. First of all the fashion designs are not protected under a single act but rather these protections are scattered across different laws and principles such as the Trade Marks Ordinance 2001, Copyright Ordinance 1962, Registered Designs Ordinance 2000, Common-law passing off principles. This creates difficulties for designers to determine which legal rights they have and which part of their work is being protected under which law.
Despite the law being legally available for protection of their designs, due to lack of awareness of these laws, it makes them rarely being used by designers. Moreover, there is a short life span of these fashion products as fashion trends tend to change over time making trends to update very soon. Most designers would not register their designs as they believe that by the time registration is completed, the trend may have already passed due to various factors. The cost and effort invested in the registration would exceed the gained benefits.
Furthermore, garments cannot qualify for copyright law under Copyright Ordinance 1962, as the ordinance protects artistic works and its application to fashion garments is limited due to the functional nature of clothing. Copyright protection extends only to discrete artistic elements such as textile prints, embroidery, or sketches, while the overall design, cut, and silhouette of garments are excluded as utilitarian features. In Pakistan protection of fashion heavily relies on trademark and industrial design law, which ensures a more appropriate legal framework for protecting commercial fashion interests. Consequently, trademark ordinance fills a significant gap in the protection of fashion-related intellectual property.
Conclusion:
Pakistan lacks a dedicated fashion law just like the European Union which has a dedicated system called European Union Community Design Rights, instead of dedicated law, designers have to rely on various intellectual property laws each covering a specific part of a fashion product. The protection is scattered among Copyright Ordinance 1962, the Registered Designs Ordinance 2000, and Trademarks Ordinance 2001. Although, these do provide some sort of protection but still fail to provide complete protection specifically fashion related. Some judicial decisions demonstrate that courts protect trademarks, commercial goodwill, and brand reputation over creativity of fashion products.
The evaluation concludes that trademark law is the most effective way of protecting fashion products, other laws do exist but they are not effective as Trademarks Ordinance 2001. Which also makes the existing legal framework be more beneficial for established brands instead of emerging designers.
To encourage new designers and innovations, Pakistan needs better enforcement and stronger design protection laws in order to make the fashion industry to grow.
References and Bibliography:
Legislation
Copyright Ordinance 1962 (Pakistan)
Registered Designs Ordinance 2000 (Pakistan)
Trade Marks Ordinance 2001 (Pakistan)
Intellectual Property Organization of Pakistan Act 2012 (Pakistan)
Council Regulation (EC) No 6/2002 on Community Designs [2002] OJ L3/1.
Case Law
Mehnaz Mirza Malik v Bilal Embroidery & Others, Suit No. 795 of 2020 (Sindh High Court, Karachi, decided on 14 December 2020)
Al-Karam Textile Mills (Pvt.) Ltd. v Mehtab Chawala & Others, 2007 CLD 966 (Sindh High Court, Karachi, decided 11 May 2006)
