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COPYING OF COSMETICS: HOW FAR CAN IP PROTECTION BE GRANTED?

Updated: Sep 19, 2020


Introduction:

Art has value, there is energy and effort and time put into the creation of any form of art, be it a painting, a hand embroidered skirt, a song or a colourful smoky eye. The recognition that the artist is so deserving of, must be given. The face is a canvas for makeup artists and they often use techniques to paint and transform the face. Anyone who has ever noticed the backstage shoot of a runway or fashion or haute couture show, will observe the painstakingly detailed artwork applied upon the models face. These signature looks are probably decided and perfected after much trial and error so as to fit it in with the show’s aesthetic theme and background as well as the ‘piece de resistance’ outfits so that it creates a cohesive image. Signature makeup looks by celebrity makeup artists are quite popular. The crème de la crème of luxury beauty houses hire the best celebrity makeup artists or brand owners to come up with beauty looks to fit in with their seasonal fashion collections.

Recognition of Value:

Now the makeup and styling of the runway model could be basic or complex. The quantum of value for every artwork may differ but that does not erase the fact that any artistic creative feature we see is an idea that took time and effort to implement. Makeup looks are artistic expressions and require some protection that is often granted to other works of art. A Monet or Picasso is a creatively fuelled expression, but so is a model’s makeup look done for a magazine cover. Fine arts are often overlooked or misconstrued as shallow and easy. Take the case of an Australian makeup artist's colourful eye makeup look with winged eyeliner which was copied by a beauty tool manufacturing brand and posted on their Instagram page; where the original makeup artist rightly points out that there is a difference between creation and recreation. The latter amounts to plagiarism, especially when no homage is paid to the original creator. The subject matter is an expression of the mind and hence deserves recognition and protection from theft.

Proliferation of Dupes:

Most of us have at some point come across a ‘first copy’ of a clothing piece, handbag or an accessory viz. Anamika Khanna lehenga in a tiny Bandra boutique, or Louis Vuitton sunglasses in Colaba Causeway. Counterfeiting and copying has existed since a very long time in the clothing and fashion world but now it has even entered the cosmetics world. Just like a cheaper imitation of a clothing item, makeup manufacturers are coming up with ‘dupes’ of higher end makeup products. The literal meaning of ‘dupe’ is to deceive or hoodwink or trick someone.

Cosmetics companies could be giant MNCs or indie brands, but whenever they release a product that gains cult status in the influencer/Youtuber/Vlogger realm, a dupe is surely on the way from another brand. The formulation, consistency, scent and packaging of the product will have similarities. While technology is patented with regards to formulation and ingredients used in skincare or makeup and packaging as well as logos can be trademarked, it does not prevent the market from being saturated with similar products.

The concept of dupes becomes a bit of dilemma when they turn out to have a large fan base. A luxury brand comes out with a product which is often too expensive for most people. If a drugstore brand releases a similar product at an affordable price, it will definitely have a mass following. Considering cosmetics to generally be a luxury rather than a necessity, the common modern man or woman would be averse to spending a large sum of money on them. The quality may differ, but ultimately if a product gives the same result, the consumer will always go for a dupe if it means they get to save some money. YouTube videos having reviews of dupe products and comparisons are obviously very popular and have mass appeal.

Implementation of intellectual property law has often failed to adequately protect the fashion industry. But is mass satisfaction of greater interest than protecting luxury brands’ overpriced names? Take for example, Milk Makeup, a high end cruelty free vegan cosmetics brand, released a makeup primer by the name of ‘milk Makeup Hydro Grip primer’. This primer achieved cult status quickly as it became popular in the Beauty influencer world. A few drugstore brands such as ELF, Nyx released their own affordable version ‘Jelly Pop Primer’ and ‘Nyx Hydrating jelly Primer’ respectively. Both had similar claims and performance as well as the same consistency. It was tested out and used by several beauty Youtubers who certified it as a cheaper alternative and a verified dupe for the original Milk Makeup product.

Problems Currently Faced by Cosmetic Brands:

While formulations can certainly be patented, logos can be trademarked, there is no way to prevent another brand from coming up with a similar product thus resulting in competition. We know that competition is a necessary factor in every working market and that for every category of product, competitive products will be aplenty. Original and creative brand logos, packaging, and designs can be protected by copyright with relative ease. Fanciful, arbitrary, suggestive trademarks can also protect brand names and other identifying features. The specific combination of ingredients used in your beauty product can be protected under patent law even though the ingredient list itself is not subject to copyright protection.

Thus while the framework exists, the method to implement is not enforceable as ideally necessary for today’s world and market.

The Argentine Courts, regarding a conflict between a makeup artist, (the plaintiff) and the director of a magazine, (the defendant) discussed this issue. The plaintiff filed the lawsuit against the defendant because she was hired to do makeup for models in a production for the magazine ‘N’. Afterwards, she was invited to a parade organized by the defendant and saw some catalogues there, which included photos wherein it was indicated that the makeup look done was the work a third person and not the plaintiff.The claim was initially rejected with the argument that since the make-up captured in the photographs was not a work but only an idea, it did not deserve protection because ideas or concepts, unless implemented or executed do not enjoy legal protection . However, the Civil Appeals Chamber revoked the judgment of first instance in favor of the plaintiff stating that the defendant had caused damage to the plaintiff when using the photos with a different purpose to the original one for which they had been produced (patrimonial right) and the lack of consignation of the plaintiff’s name as executor of the realized makeup (moral right). Although in this case the Civil Appeals Chamber did not resolve the case by, directly applying the regulations related to copyright, it indirectly recognized the moral and patrimonial right of the makeup artist to rule in favor of the plaintiff.

Thus, the law falls short in protecting creativity as all artistic expressions are not treated equally, which begs the question of how is the worthiness of ‘protection grant’ decided?? Factors that end up making the dupe look as good as the original luxury product include but aren’t limited to similar packaging and similar performance in terms of application. This results in dilution of the originality and novelty of the product. However, the masses are happy with cheaper alternatives. This can be said for most sectors but since makeup is more of a creative endeavor rather than a technical one, while knowing that two or more creative minds might think alike, to what degree can the protection parameters be implemented?

Conclusion:

Our digital era is one of creationism and availability. Our generation likes to buy the best that they can afford. Every social media platform is brimming with content about product reviews and the art they create with said products. People love throwing around the line ‘We deserve the best’ even if the best comes at the cost of chipping away the originality of someone else’s idea and creation. Consumerism is here to stay and the masses are evidently aiding it. Makeup looks created with cosmetics are an implementation of idea and expressionism and deserve to be protected, but it seems that good old fashioned integrity in the digital world has disappeared. There is a need to call out brands that manufacture and market products in a superfluous manner. Theft and plagiarism are the requirements for infringement of intellectual creations. This infringement becomes subjective depending upon the viewer of the art. A wider framework of legislation which involves artists and experts to put forth their experiences could be the way to combat the rising pilferage of artistic creativity.


Title Image Source: ctpa.org.uk


This article has been written by Ishita S. Shah who is currently pursuing PGDIPRL from NLSIU, Bangalore.

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