The Evolution of Fashion: From Function to Expression:
Until the 19th century, fashion was primarily utilitarian, serving functional purposes. But in recent times, fashion has transformed into a multifaceted expression of identity, creativity, and culture, deeply interwoven with art and innovation. This industry thrives on innovation and creativity where designers are constantly pushing the boundaries of style and craftmanship. In a highly competitive market, they strive to create unique, original designs that not only meet consumer demand but also set new trends. Designers are continuously thriving for innovation in materials, techniques, and technology, experimenting with new fabrics, textures, and forms to redefine aesthetic standards. Creativity fuels the design process, enabling the development of products that blend function and beauty.
The Fragile Nature of Innovation: Why Intellectual Property (IP) Protection is Critical:
Innovation is the lifeblood of fashion industry which keeps the industry vibrant and growing. However, this innovation is inherently fragile as fashion trends evolve rapidly and original designs can be easily replicated. This poses a serious challenge for designers and brands, jeopardizing their creative efforts and market position. Protection of intellectual property plays a crucial role in safeguarding the rights of fashion innovators. Without effective IP laws, designers risk losing control over their creations, as counterfeiters and competitors can imitate their work without the same level of investment in creativity or craftsmanship. This not only reduces brand value but also undermines the incentive for designers to invest in new ideas. Consequently, it becomes necessary to protect the IP rights of designers to safeguard their efforts and creativity.
Vulnerabilities and How Leading Designers Are Fighting Back:
Despite its dynamic nature, the fashion sector faces significant challenges from counterfeiting and imitation. These vulnerabilities highlight the critical need to protect designers’ intellectual property rights and safeguarding of unique designs, brand identities, and artistic elements is essential to preserving the integrity and originality of fashion. Prominent Indian fashion designers with global acclaim, such as Manish Malhotra and Sabyasachi Mukherjee, are outspoken advocates for stronger IP protections. Sabyasachi Mukherjee, having received the National Intellectual Property Award 2018[1] in the field of designs and commercialization for holding the copyright on more than 700 of his designs, highlighting the importance of registering IP stated, “It is expensive to register every single design, but it helps us to break the notion that the fashion industry is frivolous and doesn’t understand such complexities.” With their iconic creations gaining international recognition, these designers face an ever-growing threat from counterfeiters who mass-produce unauthorized replicas of their designs. The impact of counterfeiting extends beyond financial losses; it also dilutes the designers’ brand image, confuses consumers, and diminishes the exclusivity that often defines luxury fashion. Manish Malhotra and Sabyasachi Mukherjee, constantly raise their voices against counterfeit designs flooding the market and advocate for stronger IP protection to safeguard their original creations and uphold the integrity of the industry.
A Legal Victory for Creativity: Gaurav Gupta’s Fight Against Counterfeits:
One of the most striking examples of a designer actively fighting against counterfeiting is Gaurav Gupta, whose designs have gained global recognition at prestigious events like the Paris Couture Week, the Grammy Awards, and the Met Gala. Despite his success, Gaurav Gupta’s designs have been heavily targeted by counterfeiters eager to capitalize on his creative brilliance. Hence, Gaurav Gupta initiated a series of legal battles to defend his intellectual property. In one such case, M/S Reflect Sculpt Private Ltd. & Anr v. Abdus Salam Khan, CS(COMM) 278/2024, Guarva Gupta filed a lawsuit in the Delhi High Court to combat the unauthorized reproduction of his designs. The court ruled in favor of Guarva Gupta, affirming the intellectual property rights of his company, Reflect Sculpt Pvt Ltd (RSPL), and issued an injunction against the counterfeiters. This decision is a significant milestone, setting a precedent for other designers to take legal action against infringement and protecting the future of innovation in fashion.
Counterfeiting and Luxury Brands:
Counterfeiting is not a problem confined to local markets; it’s a global issue that plagues even the most iconic luxury brands. Gucci, Louis Vuitton, and other high-end labels are prime targets due to their immense popularity and aspirational status. The luxury sector is built on exclusivity, craftsmanship, and brand prestige, all of which are threatened when counterfeit goods flood the market. In India, a dramatic example of this occurred in March 2021, when law enforcement authorities confiscated a large quantity of counterfeit goods, including imitations of well-known brands such as Allen Solly and Killer. These counterfeit items had an estimated market value of over INR 20,000,000 (approximately $20 million), highlighting the staggering scale of the issue.
A significant legal battle was fought in Guccio Gucci v. Intiyaz Sheikh, 2021 SCC OnLine Dis Crt (Del) 36, where Gucci filed a case against a local manufacturer for producing counterfeit socks bearing the brand’s iconic logo. The Tis Hazari District Court in Delhi ruled in favor of Gucci, issuing an injunction preventing the defendant from using the brand’s registered trademark and logo. This case serves as a crucial reminder that, for luxury brands, counterfeiting is not only a financial threat but also a reputational one. Maintaining consumer trust and brand integrity requires vigilant enforcement of intellectual property rights.
The widespread presence of counterfeit fashion goods doesn’t just hurt designers and brands; it also has far-reaching implications for consumers and the fashion industry as a whole. Counterfeit items are often produced under unethical conditions, with poor-quality materials that fail to meet safety standards. For consumers, purchasing counterfeit goods can lead to disappointment and dissatisfaction, as these items rarely match the quality of the original products. More importantly, it erodes trust between consumers and brands, making it harder for legitimate businesses to build lasting relationships with their customer base.
Moreover, the economic impact of counterfeiting on the fashion industry is significant. It siphons off revenue that would otherwise support the growth of legitimate businesses, hindering job creation and innovation. In this context, the enforcement of IP rights is not just a legal issue but a necessity for sustaining the creative ecosystem that underpins the fashion industry.
Indian Legislative Framework for Fashion Industry
The fashion industry in India is regulated primarily by three key legislations that provide protection to intellectual property (IP) that are The Trademark Act, 1999, The Copyright Act, 1957, and The Design Act, 2000. Each of these laws offers distinct protections for designers and brands, yet also presents unique challenges in the evolving, fast-paced fashion environment.
- The Role of Trademarks in Fashion
Trademarks play a significant role, help consumers identify and associate products with specific companies, fostering brand loyalty. The Trademark Act provides protection to the registered trademark, safeguarding brands by taking action against counterfeiting.
Registered vs. Unregistered Trademarks
While registered trademarks enjoy statutory protection, unregistered trademarks are left with limited legal recourse. Although such unregistered trademarks are protected under the tort of passing off, the legislation does not provide any statutory remedies, it only offers civil remedies like injunctions and damages. In a notable case, M/s. Shine Chem Laboratories v. Standard Reagents Private Limited, 2016 SCC OnLine Hyd 198, the Telangana High Court recognized the action of passing off stating that “passing off is a common law tort based on the principle that no one should profit from another’s work”. Brands with well-known trademarks across multiple nations are more vulnerable to counterfeit infringement, as their global recognition makes them attractive targets for unauthorized use and exploitation. Issues become more intense as the complexity of navigating different legal systems and enforcement mechanisms can make it challenging to protect a brand’s reputation on an international scale.
Manish Malhotra’s Trademark Dispute in Pakistan[2]
In 2014, Indian designer Manish Malhotra approached a legal forum in Pakistan to prevent a local textile company from using his trademark. He argued that his brand, recognized as a well-known mark under Pakistan’s Trademark Ordinance 2001, should be protected despite not being registered in Pakistan. This case highlighted the complexities of cross-border trademark disputes and the reliance on well-known mark status for protection in foreign jurisdictions.
- Role of Design Protection in Fashion
The Design Act, 2000 requires that the design must be registered in order to protect it against counterfeiting. Section 5 of the Act discussed the procedure for application for registration of designs. In today’s era of social media, as soon as a new design is out, it only takes a few minutes to get it viral exposing them to rapid copying. In the everyday changing market where a particular trend or a design last for only a month or two, the registration process of design takes atleast 2-4 months. Hence, the current provisions are highly inadequate to protect the designers who dedicate countless efforts and creativity to develop such designs.
Aesthetic vs. Functional Designs:
The Design Act primarily protects aesthetic work, which appeals to the eye. However, functional designs—those serving a utilitarian purpose—are not eligible for protection under this Act. In this regard it is important to mention the observation of IPEG Inc v. Kay Bee Engineers, 2016 SCC OnLine Guj 155, the court emphasized that “if any part of a design serves a functional purpose, it cannot be registered under copyright. This distinction between aesthetic and functional elements creates ambiguity and limits the scope of design protection.” The lack of judicial precedents in India on this issue makes it unclear what exactly constitutes a “functional part of a useful device.”
- Role of Copyright Protection in Fashion:
Fashion designers also rely on the Copyright Act, 1957, to safeguard their designs, which includes protecting original drawings, sketches, and patterns as artistic works under Section 2(c) of the Act. Copyright ensures designers’ creative work is not unlawfully replicated or used without permission. Section 2(c) of the copyright act defines artistic work which includes drawings and work of craftsmanship. These terms are wide enough to include the work of fashion designers and even sketches of designs made by fashion designers. Since both- the copyright act and design act grants protection to fashion, there are many overlaps between the two. Section 15 of the copyright act states that if a design is already registered under the design act, its protection would be ceased under the copyright act. Section 15(1) of the Copyright Act creates uncertainty for designers regarding when and under which law they should seek protection. Additionally, the design registration process is complex and burdensome. If designers fail to register their designs, they are left without any legal recourse. Another significant limitation, specified in Section 15 of Copyright Act, is that if a copyrighted design which is capable of being registered under design act and has been reproduced more than 50 times by industrial process, its registration would cease to operate. As technological advancements continue to grow, it is essential to ensure that the scope of protection should not remain restricted.
Navigating Legal Uncertainty in Fashion IP:
The absence of judicial precedents in India on certain aspects of fashion IP. Given the rapid pace of innovation and the influence of technology in fashion, there is a growing need to modernize India’s IP laws. This includes streamlining the design registration process and expanding protections for functional designs and mass-produced items to ensure that designers can fully capitalize on their creative efforts. The current legislative framework in India offers valuable tools for protecting intellectual property in the fashion industry, but significant gaps remain.
The Delhi High Court in the case Micolube India Limited vs Rakesh Kumar Trading as Saurabh Industires & Ors., (2013) 199 DLT 740 highlighted significant legal questions regarding the intersection of design law and trademark law in India, particularly the complexities surrounding the enforcement of design rights. It was observed that “while the Designs Act does not explicitly provide for passing off, the common law remedy of passing off could still be relevant in cases of design infringement”. The decision highlighted the need for clarity in the legal framework governing fashion and design in India, particularly regarding remedies available for design infringement and passing off. By addressing these challenges, especially in terms of speed and clarity of protection, India can ensure that its burgeoning fashion industry is adequately safeguarded against piracy, counterfeiting, and unauthorized use of creative designs.
Conclusion – Adapting IP Laws to Technological Advancements:
India’s legislative framework, comprising the Trademark Act, Copyright Act, and Design Act, provides foundational protection for the fashion industry. However, designers continue to encounter significant challenges, particularly in a fast-paced, highly competitive environment. To better safeguard creativity and innovation within the industry, several critical improvements can be made to the existing legal framework. To address the challenges faced by designers in protecting their creations within India’s legislative framework, several improvements could be considered. One of the primary issues is the process for design registration which needs to be expedited to match the fast-paced nature of the fashion industry. A more efficient registration system would ensure timely protection for designers before their designs are replicated. Secondly, the ambiguity surrounding the legal treatment of functional versus aesthetic designs leads to uncertainty for designers. Clear and consistent guidelines should be established to distinguish between functional aspects and aesthetic elements, particularly in cases where fashion items serve both decorative and practical purposes. This would help reduce confusion and ensure that designers are aware of which protections their creations can receive. The overlap between the Copyright Act and Design Act, especially in terms of when a design transitions from copyright protection to design registration, needs to be addressed. Amendments to Section 15 of the Copyright Act could provide clarity by ensuring that both unregistered and registered designs receive appropriate protection without confusion about where one law’s protection ends and the other begins. While registered trademarks enjoy robust protection, unregistered trademarks are left with limited legal remedies. Enhancing the protection of unregistered marks through statutory provisions, rather than relying solely on common law torts like passing off, would give designers stronger tools to enforce their rights and combat misuse of their brand identity. With the rapid growth of digital technologies and social media, the fashion industry faces new threats, including counterfeiting and unauthorized reproduction of designs. The legal framework must remain flexible and adaptive to these technological changes. Regular updates to the IP laws are essential to ensure designers are adequately protected in an increasingly digital and global marketplace.
[1] https://www.indiatoday.in/lifestyle/fashion/story/sabyasachi-mukherjee-sabyasachi-couture-national-intellectual-property-award-2018-1221314-2018-04-27
[2] https://economictimes.indiatimes.com/magazines/panache/manish-malhotra-moves-pakistan-legal-forum-against-a-firm-using-his-trademark/articleshow/42935262.cms?from=mdr
- Ms. Rajlatha Kotni, Partner, Lexport Advocates and Legal Consultants
- Ms. Swagita Pandey, Associate, Lexport Advocates and Legal Consultants
- Ms. Sejal Raghuwanshi, Student, Maharashtra National Law University, Nagpur.
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