Apart from
consumers due diligence there is also a major player in the cosmetics arena and
that is none other than various laws that have been specially drafted to combat
various issues that arise in the cosmetics arena. Surely no laws are perfect
and flawless but that does not make the laws absolutely redundant, as laws have
a prominent place in the society. Laws can’t be read in isolation as laws are
inter-connected to each other in some form or the other. So is it with the I.P
laws in special regard to the cosmetics industry. Intellectual Property is
known as I.P. in short.
Cosmetics
industry is a combination of law, business, marketing, sales, consumerism, and
economics etc. Simply understanding law in isolation vis-à-vis the cosmetics
industry would not suffice. There is always asymmetric information on brands
among the consumers and the facets named above such as law, business,
marketing, sales etc. aid in bridging such a gap.
Trademark law
is associated with brands but understanding brands gets complex. The word brand has not been defined in
any law. The term brand has been included in the definition of a mark under the
Trademark Act, way back in 1999.
Brands can be
understood as perceptions or expectations that the consumers develop over a
period of time. This perception or expectation is majorly developed due to the
marketing strategies and the public relations that are established through
constant customer care and satisfaction. Bringing brand under the ambit of
trademark law at times is debated because as per the definition of a mark under
the Trademark law, a mark would include any name, packaging, combination of
colors, brand etc but brand includes these all. A brand may be known because of
its name e.g., Chanel, combination of colors namely the blue cobalt hex colour
combination with white representing Nivea, unique packaging of branded perfumes
etc. Brand may be also known because of its packaging. Thus, this makes it
complex to understand the term brand in simple terms.
Trademarks
are no longer understood in their conventional form which has been restricted only
to the enacted law because of the brainstorming that brands have undergone over
a period of time. Brands not just define a product but attract customers and
engulf the emotions of the consumers with the aura that it creates among the
consumers of the brand. Brand has no longer been just a mark for the consumers
instead the consumers have developed a relationship with the brand which is
long-lasting due to the trust and loyalty that the consumers show towards a
particular brand. Despite the bad reviews or accusations hurled against a
particular brand there are yet loyal consumers who would not stop using those
brands. Cosmetic brands too showcase such a loyalty and deep attachment from
the consumers. Even though the word mark may be understood but the term brand
still needs a deeper thought process but still as long as it comes within the I.P
protection realm there is a ray of hope for the ones whose rights as brands are
infringed by the infringers.
Copyright and
Patents law too, have their role to play when there is copyright claimed over
an artistic work of a cosmetic packaging. The Designs Act, 2000 would have its
own unique role to play on the various designs in the cosmetic arena that are
registered under the Act. The cosmetics sector has seen a lot of changes with
time. There is AI technology which is being used by cosmetic brands. The
concept of Trade Ambience and Trade Dress also needs to be explored as this too
is playing a major role in the cosmetics industry. The brand ZARA revolves
around the theme of black. A colourful ZARA store is beyond imagination because
the ambience has created a distinguishing relation between consumers and the brand.
The ambience of complete black outfits is the concept that’s absolutely
non-conventional. Packaging’s of cosmetics brands with fireworks unlike the
conventional floral dressing of the product is another novel aspect of trade
dress that is non-conventional.
I.P laws have
a very specific role to play in the cosmetics industry. Laws needs to get
upgraded with the upgradation in the changing marketing trends and times in the
society.
Surely I.P
laws such as Trademarks Act, Copyrights Act, Patents Act etc. have a major role
to play in not just protecting but by also punishing the infringer but consumer
being the major focus requires a forum to redress such an issue and one such
boon to the consumers has been in the form of The Consumer Protection Act, 2019
where the ambit of consumers has been broadly defined to also include those who
buy any goods through online transactions by electronic means or by
teleshopping under Section 2 (7) of the Act.
This Act
meets the new age consumer expectation. By widening the definition of a
consumer this Act provides a huge relief to the online purchasers. The
e-commerce platform has been very well considered under this Act. The defense
by the e-commerce platforms that they are only platforms to sell the products
will not be acceptable under this Act if the platforms are found to sell
counterfeit products. The lacuna of e-commerce platforms not being covered
under the previous Consumer Protection Act, has been aptly addressed for the
benefit of the innocent consumers.
It is not
just the key players such as brands, consumers, retailers etc. who impact the
cosmetics industry but law also has a key role to play and law needs to answer
some of the challenges faced during its influential role in such a gigantic
industry namely:
- How would the conventionality of the provisions in law meet the contemporary needs of the key players in the cosmetics industry?
- Brands being wider concept would include any mark or a mark would include brands
- Can differing opinions on provisions of law lead to a common outcome or create more confusion about the various provisions?
These are
some of the questions that require answers. The cosmetics industry is
progressing at a very quick pace and it is very important for the laws to catch
pace with the quickly progressing cosmetics industry.
