Fashion, as we know it, has been evolving for years together now. So is the law relating to it. Fashion law or apparel law is an emerging field in law since the issues in this area have been more visible in the modern times due to development in technology.
Contents
Registration of a fashion brandLicenses required to operate a fashion retail storeThe license under the Shops and Establishments ActConclusion
The fashion industry is the most sought after at any given point of time. Not only the designers, but there are also fashion houses, wholesalers, retailers, tailors, and photographers who are involved in the fashion business. Starting a business, more particularly a fashion business, is indeed a task to accomplish. Numerous licenses and approvals should be acquired before and after venturing into such a commercial activity. All legal compliances have to be fulfilled in order to carry out the business lawfully.
At present, the generic laws protecting the Intellectual Property Rights, specifically the Trade Marks Act, 1999, the Copyright Act, 1957 and the Designs Act, 2000, regulate the fashion industry. Other than these legislations, there are other laws and rules that have to be complied with to establish a legal fashion business in India. All these regulations have been discussed in this article.
There is no express legislation to deal with registration of a fashion brand or a fashion line. It is the Trade Marks Act, 1999 that consolidates the law on registration and protection of trademarks of all goods and services. According to s. 2(1)(m), the inclusive definition of the term ‘mark’ covers a brand as well. The verbatim expression is as follows:
“‘mark’ includes a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof”[1]
Impliedly, a fashion brand is well within the ambit of the said Act. In order to register and protect one’s brand, all provisions relating to registration of a mark should be complied with prescribed by the Act. These compliances are explained as below.
A Trade Marks Registry Office is envisaged under the Act[2] for the purposes of the trade marks registration.
Following things must be kept in mind while registering one’s fashion brand and to avoid refusal of registration by the Registry Office:
1. The brand to be registered should be identifiable and distinct from the ones already prevailing in the market. It should not confuse or deceive the public, hurt the religious sentiments of any class of persons, or contain any obscene material as prohibited by other laws for the time being in force.
2. The brand name or mark cannot contain any sign, symbol or any marking which is prohibited under the Emblems and Names (Prevention of Improper Use) Act, 1950.
3. The said mark should not falsely suggest a connection with any person living or dead.
4. The proposed brand name or mark which is sought to be registered shall fail if it is prevented from registration due to any law on passing off, protecting the unregistered trade mark used in a particular trade, or on copyrights.
After considering all these grounds, the owner may proceed for registration with the Registry Office. The procedure prescribed by the Act under Chapter III suggests the following:
1. The owner or the proprietor of the brand seeking to register her/his mark should make an application in writing to the Registrar in the manner prescribed for registration process.
2. The said application should be filed in the Registry Office having territorial jurisdiction of the place within which the Applicant primarily carries on the business.
3. The said application may either be refused by the Registrar after stating the reasons or grounds for the same, or by accepted absolutely or conditionally, citing modifications or amendments in the application.
4. After the application has been accepted, absolutely or otherwise, the Registrar shall advertise the application seeking opposition from any person against the registration of the brand. Any person so opposing it shall follow the procedure laid down in the Act.
5. Consequently, if there is no opposition within the prescribed time or if there is any opposition and has been disposed off in favour of the Applicant, the Registrar will go ahead with the registration and complete the process within 18 months of filing the application. A certificate shall be issued in the form prescribed with the seal of the Trade Marks Registry.
6. A registered trade mark is valid for a period of 10 years and can be renewed as and when required.
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From time to time, various permissions and licenses have to be procured from the appropriate authorities to carry out retail business legally and effectively. All the necessary compliances have to be adhered to before beginning the whole process of sales. Some of the licenses must be displayed at conspicuous places within the store or the manager’s office while others have to be filed with the authorities at regular intervals. It is always safe to apply for these permissions or for renewals before time to avoid any uninvited notice or penalties from them.
Following is the list of documents which are necessary prerequisites while running a retail store business:
1. A trade license as issued by the concerned Municipal Corporation;
2. Registration of the store, the dealer and the brand;
3. A license from the Fire Department stating the fulfilment of all prerequisites in matters of fire safety;
4. A Phonographic Performance Limited (PPL) license for music to be played in the store granting permission to play pre-recorded songs for the customers;
5. List of all national, festival and weekly holidays;
6. List of all employees working in the store and their work timings;
7. A Principal Employer Certificate of Registration as given by the respective state government;
8. Abstract of the Minimum Wages Act, 1948 and the Rules laid down thereunder;
9. Abstract of the Maternity Benefit Act, 1961, and the Rules laid down thereunder;
10. A license from the Office of the Electrical Inspector granting permission to run a generator set;
11. Registration of GST (Goods and Services Tax) for Manufacturers, Wholesalers and retailers and service providers if necessary as per law;
12. Branch Certificate Registration (if any).
Other than these documents, some other vital records that should be maintained as per law include:
1. Muster Roll in Form A and Annual Return in Form K, the Maternity Benefit Act, 1961;
2. Wages Slips and Annual Return (Form III) as per the Minimum Wages Act, 1948;
3. Under the Shops and Establishment Act of every State:
a. Register of wages
b. Register of employment
c. Daily working hours of the employers
d. Leave Register
e. Details of weekly holiday
f. All other forms and registers to be maintained as provided by the State Acts.
Every State in India has shops and establishments enactment in place that regulate the conditions of employment and other conditions of work in various establishments. This is the most important piece of regulations which is inevitable for every business house to follow. This suggests that a fashion store owner will have to abide by the provisions enumerated by the respective Act enacted for the State in which she/he wants to start the business.
A general glance over the acts of various states infers some common provisions which are obligatory in nature. Most importantly, all these businesses have to be registered with the appropriate authority established for that area under the Act within the prescribed time period. A fee is charged for registration depending upon the number of employers employed and is to be paid to the said authority.
Other than registration, all other compliances in matters of work hours, payment of wages, compensation, safety and security of the employees, and the like have to be fulfilled as laid down by the Acts.
To sum up, there are no specific legislations that lay down compliances while establishing a fashion retail business or a brand in the Indian context. There are several sections and provisions dispersed over several enactments. A few of them also differ according to the jurisdiction within which one intends to carry on their business. It is recommended that comprehensive legislation dealing with fashion houses and businesses should be enacted for legal clarity in the business.
