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MAHARASHTRA NATIONAL LAW UNIVERSITY, MUMBAI

INTELLECTUAL PROPERTY RIGHTS

SEMESTER VI

FINAL DRAFT

TOPIC: IPR IN FASHION INDUSTRY: AN ANALYSIS

SUBMITTED TO: PROF. SAJID SHEIKH

SUBMITTED BY: SAKSHI SALUNKE

ENROLMENT NO.: 2017043

B.A LL. B(Hons.) 2020

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INTRODUCTION

Fashion in India originated thousands of years ago with magnificent traditions behind it. As
India has always remained rich and varied textile heritage where each region and state have its
own unique native costume and traditional attire accessories. The apparel and accessory
segment in India have been enhancing itself rapidly with international developments in this
globalised era. Fashion industry in India is growing day by day and it has experienced
expansion significantly in the last decade mainly driven by the growth of domestic designers
and have gained recognition worldwide. The Indian fashion industry’s growth is determined
by the surge in the number of large fashion events from 2004 to 2013. According to the study
conducted by the Associated Chambers of Commerce and Industry of India (ASSOCHAM),
the domestic designer apparel industry in India, which was of worth Rs, 720 crore and was
reporting a compounded yearly growth rate of about 40% in 2012, is likely to cross Rs.11,000
crore mark by 2020. However, the contribution of the Indian designer wear industry in the
global market is 0.32% less but is expected to reach 1.7% by 2020. On the contrary, the Indian
fashion industry is thriving and is also beleaguered by the menace of piracy in fashion domain.
Plagiarism of designs is a growing concern among the Indian fashion industry and is attributed
to the lack of awareness surrounding intellectual property rights (IPR) which are available to
fashion designers in India. Even as awareness about IPR protection is increasing in India, the
law relating to protection of fashion designers’ rights remains unclear. Also, the problem also
gets some degree of concern from an overlap between the Designs Act and the Copyright Act
as, if something is not protected as a design and is reproduced more than 50 times by an
industrial process, then design protection may be the only recourse. If the overlap between
Design Law and Copyright Law is undone, a greater degree of comfort will apply to many
designers in enforcing rights.1

UNDERSTANDING “FASHION AND FASHION DESIGN”

Fashion is an art, a reflection of life. It is a language of signs, symbols and iconography that
non-verbally communicate meanings about individuals and groups. It is a mode of expressing
oneself and serves as an extension of one’s personality. Fashion may vary considerably within
a society according to age, social class, generation occupation and geography as well over

1
http://journals.du.ac.in/humsoc/pdf/Bharti_Final_9.pdf
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time.2 It transforms constantly, and the changes may proceed more rapidly than in most other
fields of human activity. In common parlance, fashion refers to a popular way of dressing
during a particular time or among a particular group of people. However, it is more than that
and is best defined simply as the style or styles of clothing and accessories worn at any given
time by groups of people. It also covers in its ambit footwear and jewelleries. In a nutshell,
fashion refers to anything that is the current trend in look and dress up of a person. Fashion
design is the application of design and aesthetics beauty to the items of fashion. It is a form of
art dedicated to the creation of original clothing and other lifestyle accessories. Considered as
‘principle creative element’ of fashion industry, a fashion design is influenced by cultural and
social attitudes and has varied over time and place. Moreover, while thinking about fashion
technology or industry, we ponder that how IPR is related to it, but the veracity is that fashion
and IPR are wedded to each other. Now, the creations of the designs which are being accepted
as fashion are the intellectual creations of an individual and the law of our land seeks to protect
those creations by giving a right to those creators an exclusive right to use such creations and
exploiting them to reap monetary benefits. Therefore, with the same principle, the legal system
seeks to endorse creativity by encouraging more people to show their talent with innovative
designs which would eventually spark the growth of the economy and if the said laws fail to in
protecting the creativity efficiently, the same will result in deep loss to the nation, since nobody
will step ahead to innovate or no new creations will be created. This is how we notice the huge
correlation between the fashion on one hand and IPR on the other hand. The plethora of laws
like the Trademark Acct, Copyright Act, Designs Act and Geographical Indication of Goods
Act seeks to protect the IPR related to creations of the fashion field.3

TRADEMARK AND FASHION TECHNOLOGY

Trademark is a word, phrase, symbol or design, or a combination of the same associated with
a product or service which is used as market differentiators from similar products or services.
Any product or service will always be identified with a name and logo in order to distinguish
it from other similar products on the market. Designs are not the exception, as they will always
bear a label distinguishing them from other creations. These names and logos can be
trademarked based on the type of products (clothing, shoes, accessories, fabrics, etc.). The

2
https://www.scms.edu.in/uploads/journal/articles/article_11.pdf

3
Agarwal, S., and S. Panwar, (2016). “Consumer Orientation Towards Counterfeit Fashion Products: A
Qualitative Analysis.” IUP Journal of Brand Management,13(3), 55-74.
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slogans of advertising campaigns for each product can also be protected through trademark
registration.4 Recently trademarks that generally do not fall within the standard categories but
include marks based on visible signs (colours, shapes, moving images, and holograms) or non-
visible signs (sounds, scents) considered as Non-conventional Trademarks or Non-traditional
Trademarks can also be trademarked. Therefore, perfumes, fragrances and other aromatic
products that play an important role within the world of fashion can also gain IP protection.
Trademark law not only protects a brand’s right to revenue, but also helps consumers
distinguish between genuine products and counterfeit products.5

INDUSTRIAL DESIGN PROTECTION FOR FASHION DESIGN

Industrial designs protection is the most widely used legal protection model for fashion design.
Most countries protect fashion design as industrial designs. In India, the law relating to the
protection of industrial designs has been laid down in the Designs Act, 2000. And this is the
primary law employed by fashion designers to protect their fashion designs. The Designs Act
affords protection to the “design” registered under the Act. Section 2 (d) of the Designs Act
defines the term “design” as follows:

“Design” means only the features of shape, configuration, pattern, ornament or composition of lines
or colours applied to any article whether in two dimensional or three dimensional or in both forms,
by any industrial process or means, whether manual, mechanical or chemical, separate or combined,
which in the finished article appeal to and are judged solely by the eye; but does not include any
mode or principle of construction or anything which is in substance a mere mechanical device, and
does not include any trade mark as defined in clause (v) of sub-section (1) of section 2 of the Trade
and Merchandise Marks Act, 1958 or property mark as defined in section 479 of the Indian Penal
Code or any artistic work as defined in clause (c) of section 2 of the Copyright Act, 1957.

It means that not every design but only those designs which fit into the definition of “design”
as provided under Section 2 (d) of the Act can be registered under the Designs Act. Apart from
it, a design, to get registration and, consequently, to get protection under the Designs Act, must
satisfy the ensuing conditions as well:

1) It must be new or original.

4
Chaudhry, P., and A. Zimmerman, (2013). The Global Growth of Counterfeit Trade. In Protecting Your
Intellectual Property Rights (pp. 7-31). New York: Springer
5
“Indian Fashion Industry Waking up to Intellectual Property Protection.” Money control. Money Control.
Accessed April 6, 2020. https://www.moneycontrol.com/news/business/indian-fashion-industry-waking-up-to-
intellectual-property-protection-2924141.html.
https://www.mondaq.com/india/Intellectual-Property/703910/Fashion-And-Trademarks-The-Clothing-
Controversy
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2) It must not have been disclosed to the public anywhere in India or in any other country by
publication in tangible form or by use or in any other way prior to the date of filing for
registration.

3) It must be significantly distinguishable from known designs or combination of known

designs.

4) It must not comprise or contain scandalous or obscene matter.

From the perspective of fashion industry, the Act does not protect the entire garment as a whole,
rather, it only protects the particular/individual aspects like shape, pattern, colour etc. of the
garment. Moreover, to be protected under the act, these particular aspects must not only satisfy
the definition of “design” as provided under the Act but must also be registered under the Act.
Under the Act, the proprietor of a registered design gets copyright in the design which means
the exclusive right to apply the design to any article in any class in which the design is
registered. It means the Act affords protection not in a particular article but against a class of
articles as enumerated in Schedule III of the Designs Rules, 2001. As per the provisions of the
Designs Act, copyright in the registered design subsists for a period of ten years from the date
of registration and may be extended further for a second period of five years on the application
regarding the same. During the existence of copyright in registered design, the Designs Act
protects registered design from piracy.6 If a person commits any act involving piracy of
registered design, he is liable, on every act of piracy, to pay to the registered proprietor of the
design a sum not exceeding twenty-five thousand rupees recoverable as a contract debt or if
the proprietor elects to bring a suit for the recovery of the damages for any such act involving
piracy, and for any injunction against thereof, to pay such damages as may be awarded and to
be restrained by injunction accordingly and the total sum recoverable shall not exceed fifty
thousand rupees. Proprietor of the registered design has to institute the suit in any court not
below the court of District Judge. The above-mentioned provisions of the Designs Act lay down
in detail the mechanism to check piracy of registered design. However, they do not suit the
needs of the fashion designing industry on account of three reasons.7

6
http://docs.manupatra.in/newsline/articles/Upload/DFD5D01C-E3A6-4833-9C2B-B1B06464C354.pdf
7
“Areas of Service.” Nishith Desai Associates: Fashion. Accessed April 6, 2020.
http://www.nishithdesai.com/information/areas-of-service/industry/fashion.html.
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NO PROTECTION TO UNREGISTERED DESIGNS

The Designs Act only protects registered designs not the unregistered designs. Hence, fashion
designers who have not duly registered their designs cannot get the benefits of the Act. They
cannot file a suit for the recovery of damages for unauthorized copying of their designs and for
an injunction against the repetition thereof. Considering the dynamic nature of fashion industry
where fashion design houses come up with a fresh collection of fashion items at a regular
interval usually every season, fashion designers need automatic and immediate protection
independent from registration for their designs. And in the absence of the concept of
unregistered design protection, the Design Act is unable to provide the same. Further, it
deprives the designers of the privilege of putting their innovative creations to the market,
observing the reaction to the same and then deciding whether the particular design in question
is worth registration or not. On affording protection to the unregistered design, at this juncture,
one may compare the Designs Act of India with the laws relating to industrial designs
protection of European Union and United Kingdom and United States of America’s proposed
legislations providing sui generis protection to fashion designs.8

TIME CONSUMING REGISTERATION PROCESS

In order to avail safety towards piracy underneath the Designs Act, diagram registration is pre-
requisite. For fashion designers, this system is of very little use. The procedure of registration
as elaborated in the Act and the Designs Rules is complicated and time eating for this reason
no longer favourable to the needs of dynamic fashion format industry. The entire process of
graph registration in India (i.e. from the filing of software until the provider of certificate of
registration) takes about 10 to 12 months. And that is tricky due to the fact the projected life of
a piece of garment in a dressmaker store lasts for a maximum period of one season which is
three to 4 months. In this backdrop, a fashion designer is left with solely one option that is to
practice for format registration a great deal before the expected date of presentation of his/her
designs to the market. This ensues into another mission concerning to the protection of secrecy
about designs’ features. During the pendency of the application, trend graph remains prone to

8
“How Important Intellectual Property Is in the Fashion Industry.” - Lawyers in Chennai, Trademark
Registration Consultant Chennai, Bangalore, January 2, 2020. http://www.unimarkslegal.com/intellectual-
property-rights/how-important-intellectual-property-fashion-design-industry/.
Admin. “Fashion Industry and IPR Norms in India.” Law Zone, March 18, 2019.
http://www.lawzone.in/fashion-industry-and-ipr-norms-in-india/.
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exploitation by way of the employees of the designers or by way of any other individual in
whose incorrect palms the format may also fall. Moreover, the clothier is at a risk on account
that the success of the graph registered prior to market exhibition and sale of the same is now
not known to the designer. Hence, as soon as the registered format hits the client market, the
dressmaker might also locate that the layout is not favoured and has no longer met the expected
demand consequently making the whole cumbersome system undertaken via the clothier for
registration of that layout as futile one.

Recent Trends in the fashion industry – Contentious Issues

Creativity comprises a very important component of the fashion industry. While abundance of
creativity, help brands reach places, on the other hand, counterfeit fashion products pose threat
to the fashion industry. Fashion industry, in particular, is plagued with such controversies of
counterfeiting, or lifting of designs from popular works and putting them in some other product
and thereby causing violation of the rights of the original rightful owners. If one follows the
news regularly, one may notice at least two important development of intellectual property
rights infringement in India. The first one is the case of Christian Louboutin, whereby the ones
selling counterfeit products were held accountable and were made to pay exorbitant penalties
so as to compensate Christian Louboutin’s loss due to selling of counterfeit shoes resembling
his original creations. One may have also come across the People Tree – Dior Controversy
whereby Dior, the famous French fashion house was accused of lifting and reproducing the
exact block prints of People Tree. The same act by Dior created huge furore due to blatant
copying, without giving credit and the same would have gone undetected if the same dress was
not chosen by actress Sonam Kapoor whose photo on the same dress was featured in the cover
page of January edition of Elle India magazine. The case of Ritika Apparels v BIBA is another
case of significance, whereby one fashion brand lifted designs belonging to another fashion
house and reproduced the same design in their product thereby causing loss to the original
owner of the said design, Ms. Ritu Kumar. However in this case, the defendants, BIBA went
scot-free using a lacunae of the copyright law (Section 15(2) of the Copyright Act which says
if a creation which is eligible to be protected under the design law has not been registered with
the design authorities and has been reproduced more than fifty number of times by industrial
process, it will be considered that the copyright in the same product has been lost forever).9

9
http://www.legalserviceindia.com/legal/article-141-do-not-copy-my-puffy-white-shirt-intellectual-property-
rights-and-fashion-industry-.html
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➢ Ritika Apparels v BIBA Case

The case of Ritika Apparels as already discussed has been a unique one. One party copied,
rather lifted design from other party’s creation, reproduced and sold it in their own name. The
party from whom the design was lifted moved to the court alleging copyright infringement.
However the defendants, who lifted the same design took defence of Section 15(2) of the
Copyright Act, 1957 and submitted that the act does not amount to infringement as the original
right owners, Ritika Apparels has lost the copyright owing to the production of more than fifty
numbers of products by industrial production. Since the same design was not registered under
Designs Act, Ritika Apparels did not have any means of protecting the said design other than
producing products having the same design less than fifty numbers of times. Thus, using the
loophole existing in the IPR laws, BIBA escaped from any liability. The same case can be said
to be a landmark one due to designer’s lack of knowledge of the IPR laws of India. Had the
said design be registered under the Designs Act, 2000 the same design would have been
protected for a total period of 10 + 5 years. But perhaps the designer wanted to keep a monopoly
on the same design for a longer period of time and thus used the copyright law which later on
was turned against her thus leading to the BIBA becoming free of any liabilities.10

➢ Christian Louboutin v Mr Pawan Kumar & Ors Case

The case of Christian Louboutin is a very important one, whereby a big brand famous for its
highly stylized designer shoes dealt with the selling of counterfeited products at a lesser price
causing loss both to the brand name and to the financial coffers of the company. Christian
Louboutin’s Red Sole shoes are quite popular among the celebrities and the red coloured high
heeled shoes are quite a rage among the customers who intend to copy their favourite
celebrity’s fashion sense and style. However as mentioned before too, the original products are
quite highly priced, thereby keeping the products out of the reach of most of the customers.
Louboutin’s brand has established itself as a famous brand and a world leader by means of
usage of media and television. Louboutin’s shoes are known by their distinctive and
characteristic red coloured soles which are common in all his creations and are marketed

https://www.sciencedirect.com/science/article/pii/S0970389617305864
10
http://icrier.org/pdf/working_paper_270.pdf
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2635087
http://nerfagare.tk/us/p/fb/index.php?subid=10-926-20200406142214ade318699&oid=15
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through specific channels and stores (Louboutin has 120 such stores all across the world and
two such stores are there in India, one in Mumbai and other being in Delhi). Louboutin’s
products are protected under the trademark laws and the goodwill and reputation of the brand
existed even before the brand’s formal entry into the Indian market. The defendants started
marketing counterfeits of the much-celebrated red sole shoe, however, with different colour
schemes where the soles were red, but the other parts came in different colour schemes. The
plaintiff, Christian Louboutin moved to the court seeking a permanent injunction and
compensation claims from the two stores (Kamal Footwear and Adara Steps) selling counterfeit
products of Red Sole Shoes. The court in its judgment held the defendants liable to pay a total
sum of Rs. 10.72 Lakhs, while they were injuncted permanently from selling the counterfeits
again. The Judge in its judgment declared Christian Louboutin as a well-known mark, a much
sought-after tag for any brand owner. The infringement of Louboutin’s mark and successful
prosecution of the defendant shoe store owners are the best examples of how a designer, or a
brand owner needs to protect his or her trademark.11

FASHION DESIGN PIRACY

Piracy is the illegal and unauthorised reproduction or distribution of materials protected by
copyright, patent or trademark law. It is an act in which unauthorised copies are made of any
intellectual property and unauthorised copying is the essence of piracy. Fashion design piracy
involves illegal plagiarism of original fashion designs which further gets divided into one of
the two categories; Knockoff is a copy or imitation of someone or something popular and it is
produced illegally without a license. In the fashion world, a knockoff is a close copy of the
original fashion design, mimicking its elements, but is sold under a label different from the
label of the original design. Thus, it is not sold in an attempt to pass as the original. Knockoffs
are intended to replicate the original design nearly line for line but with another designer’s
name attached. A line-for-line copy is a nearly identical imitation of an original design. On the
contrary, a counterfeit is a copy of the original fashion design as well as brand logo or label of
that design. Here, intention is to deceive buyers of the apparel’s true content and origin both
and counterfeit apparel is sold in an attempt to pass as the authentic or original. This situation
involves piracy in fashion design besides piracy in logo or label of fashion brand. However, all

11
“Role of IPR In the Fashion Industry.” IIPRD Blog - Intellectual Property Discussions, May 23, 2018.
https://iiprd.wordpress.com/2018/05/23/role-of-ipr-in-the-fashion-industry/.
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the counterfeits do not embrace this type of blend as in some of the cases only fashion brand
labels are copied. Those cases represent purely a piracy in logo or label of fashion brand.12

COPYRIGHT PROTECTION FOR FASHION DESIGN

Copyright protection is another legal protection model employed by the fashion designers to
protect their creative works. In India, the Indian Copyright Act, 1957 lays down the law relating
to copyright. From the perspective of protection of design in general, and fashion design in
particular, Section 15 of the Copyright Act is relevant. It provides:

Special provision regarding copyright in designs registered or capable of being registered

under the Designs Act,2000. -(1) Copyright shall not subsist under this Act in any design
which is registered under the Designs Act, 2000. (2) Copyright in any design, which is
capable of being registered under the Designs Act, 2000, but which has not been so
registered, shall cease as soon as any article to which the design has been applied has been
reproduced more than fifty times by an industrial process by the owner of the copyright or,
with his license, by any other person.13
A careful perusal of the above provision clearly shows that Copyright Act and Designs Act
overlap each other on the issue of design protection. The Copyright Act, particularly Section
15, when read conjointly with the Designs Act, lays down a basic framework for design
protection in India.

1) Designs capable of being registered under the Designs Act, 200066 and registered as per the
provisions of the Act get protection under the Designs Act only.

2) Designs capable of being registered under the Designs Act, 2000 but not so registered get
protection under the Copyright Act, 1957.

3) Designs not capable of being registered under the Designs Act, 2000, as they are original
artistic works, get protection under the Copyright Act. 1957.

Considering the truth that fashion layout is a type of layout, the above defined framework for
layout protection is relevant and applicable to fashion layout safety also. It means that a style
design which is capable of being registered as “layout” underneath the Designs Act, 2000 and
registered as consistent with the provisions of the Act will get copyright protection handiest

12
https://www.um.edu.mt/library/oar/handle/123456789/9925
13
Nafis, Zoya. “Menu.” IPR Law Firms | Intellectual Property Attorneys in India, September 23, 2016.
https://www.lexorbis.com/fashion-and-ip/.
“Copyright vs Design: The Continuing Dilemma in the Fashion Industry: Forbes India Blog.” Forbes India.
ForbesIndia, March 8, 2019. https://www.forbesindia.com/blog/legalese/copyright-vs-design-the-continuing-
dilemma-in-the-fashion-industry/.
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under the Designs Act and nowhere else. on this scenario, copyright in registered fashion
design will subsist for a maximum length of fifteen years. in addition, a fashion design that is
able to be registered as “layout” below the Designs Act, 2000 however not so registered will
get copyright safety beneath the Copyright Act, 1957. Copyright in style design, on this
context, will subsist up to fiftieth replica by means of a commercial process of the article to
which design has been carried out. And on the stop, a style layout that is a unique artistic
paintings and subsequently no longer capable of being registered as “layout” beneath the
Designs Act, 2000 gets copyright safety in the form of copyright in unique artistic paintings
under the Copyright Act, 1957.14 Copyright in an authentic inventive work automatically
subsists as quickly because the paintings comes into lifestyles and it remains at some stage in
the lifetime of the author plus sixty years, while posted at some stage in the life of the writer.
It is evident, from the above discussion, that protection offered to fashion design as an original
artistic work is much stronger than the protection offered to it as a design capable of being
registered under the Designs Act, 2000. In other words, a fashion design is better protected as
an “artistic work” under the Copyright Act, 1957 than as a “design” under the Designs Act,
2000.15 And because of this reason, fashion designers in India always tend to term their creative
works i.e. fashion designs as artistic works and to protect like the same. However, courts in
India have developed jurisprudence, through a series of their judgments, to determine when a
design is an “artistic work” and when it is a “design” in the sense of Designs Act, 2000. The
decision rendered by the Division Bench of the Delhi High Court in the case of Rajesh Masrani
Vs. Tahiliani Design Pvt. Ltd16. was the first and foremost step in forming that jurisprudence.

TRADEMARK PROTECTION FOR FASHION DESIGN

Trademarks help to maintain a prestige premium for particular brands and can be quite valuable
to apparel and accessory firms. The utility of trademark law, however, in protecting fashion
designs, as distinct from fashion brands, is quite limited. A trademark is useful for a fashion
design only in that situation when it is visibly integrated into design to such an extent that it
becomes an element of the design. There is a growing tendency among fashion designers to
incorporate a trademarked logo on the outside of the garment at the time of creation of clothing
and accessory designs. And in these circumstances, the logo becomes part of the design, and

14
https://pdfs.semanticscholar.org/2200/896902c9a7c8891a02b847555e875a86a6cc.pdf
15
https://spicyip.com/2014/11/ip-overlaps-did-the-court-get-it-wrong-in-micolube.html
16
2008 PTC (38) 251 (Del.)
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thus trademark provides significant protection against design copying. However, in Micolube
India Ltd v Rakesh Kumar trading as Saurabh Industries & Ors.,17 a question was raised
whether a remedy by way of passing off action would be available qua a registered design used
as a trademark by the plaintiff, the Hon’ble full bench by 2:1 majority held that the plaintiff
would be entitled to institute an action of passing off in respect of a design used by him as a
trade mark provided the action contains the necessary ingredients to maintain such a
proceeding. The Court observed that:

Having regard to the definition of a design under Section 2(d) of the Designs Act, it may not
be possible to register simultaneously the same mater as a design and a trademark. However,
post registration under Section 11 of the Designs Act, there can be no limitation on its use
as a trademark by the registrant of the design. The reason being: the use of a registered
design as trademark is not provided as a ground for its cancellation under Section 19 of the
Designs Act.18
After making these observations, the Court held that a suit for infringement of a registered
design and a passing off action could be instituted simultaneously however a composite suit
for infringement of a registered design and a passing off action would not lie. Moreover, the
Court accentuated that a suit for passing off action could be instituted before the expiry of the
statutory period provided under Section 11 of the Designs Act. This judgement has expanded
the ambit of trademark protection for design. Consequently, a fashion design registered under
the Designs Act not only gets protection under the Act but can also be protected by instituting
an action for passing off provided that design was being used as trademark post-registration.
To conclude, this judgement has unlocked a new vista for design protection. The judgment by
expanding the ambit of trademark protection for design. A fashion design registered under the
Designs Act not only gets protection under the Act but can also be protected by institution an
action for passing off provided that design being used as trademark post-registration.19

LAWS PROTECTING FASHION DESIGNERS IN OTHER JURISDICTIONS

In the UK, the original drawing/graphic work on an item and 2-D items such as textiles are
protected under the UK Copyright, Designs and Patents Act 1988; the copyright protection
under the 1988 Act subsists during the life of the copyright owner and for 70 years thereafter.
Similarly, in the US, fabric prints are protected for a term spanning the life of the designer plus
70 years. Another form of IPR in the US is ‘design patent’ which protects the “ornamental

17
199 (2013) DLT 740
18
Ibid
19
Ibid
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design of a functional object” such as ornamental design of a mobile phone, watch, jewellery
etc. The term of protection for design patents is 14 years; however, it is difficult to obtain
design patents for clothes. Interestingly, in 2012, the Design Piracy Prohibition Bill (also
known as the ‘Fashion Bill’) was introduced in the US Congress which aimed to provide
protection to fashion designs for a term of three years. However, the Bill was not subsequently
enacted. Indian fashion designers have become more vigilant about copycat designers and have
taken to shaming those who steal their designs. No doubt, designers invest significant time and
resources in designing and marketing their clothes and incur huge economic losses due to rip-
offs of their work. A sui generis (of its own kind) protection for the IP of fashion designers,
similar to the Fashion Bill in the US, could be a good way to protect fashion designers’ rights
in India. A law exclusively for fashion designers’ IPR can also clarify the murky issues in
design piracy and infringement of fashion designs relating to clothes.20

CONCLUSION

Globally, the fashion industry is burgeoned and has become a significant part of the global
economy and should therefore receive intellectual property rights for its growth. At the heart
of growing fashion design industry are fresh and new designs. However, fashion design piracy
has marred the growth of this industry and the same has been encountered by the Indian fashion
industry. On the basis of the analysis made, it can be rightly concluded that the contemporary
IP regime in India that is inadequate and is efficient enough for protecting Indian fashion design
industry. There is a constant need to improvise the current IP regime in India so as to make it
more favourable to protect fashion design from piracy. Mainly, a separate definition of ‘fashion
design’ should be included in the Designs Act, 2000 and this definition should facilitate the
entire appearance and over all look of a particular piece of apparel or garment as against the
present definition under Section 2 (d) of the Act which protects each aspect of a garment
individually. Secondly, a simplified procedure for design registration should be made under
the Designs Act, 2000 as present procedure is a tedious one and does not suit the needs of
dynamic fashion design industry and thirdly, the provision for protection of unregistered design
should also be included in the Designs Act, 2000. The protection for even short period of time
will serve the needs of fashion design industry in this situation. Incorporation of all these

20
Ibid
“Fashion and IP.” candcip. Accessed April 6, 2020. https://www.candcip.com/fashion--ip.
14 | P a g e

suggestions would certainly make the current Indian IP regime effective and efficient enough
to deal with the menace of fashion design piracy. This would encourage fashion designer to
innovate new designs which would ultimately lead to the growth of the fashion industry. The
first and the most quintessential question which arises here relates to the scope of IP protection
in the fashion industry. Fashion brands are not immune to counterfeiting. It is easier for the
counterfeiters to copy fashion products and clothing because they are relatively simpler to
manufacture as compared to the hi-tech devices. Also, they can be sold with a high mark-up
owing to the reputation or goodwill associated with a well-known brand. With the increasing
awareness of intellectual property in the fashion world more and more stakeholders are seeking
trademarks and other IP protections for their creations. According to the Trademark Industry
Report 2017 prepared by Trademark Now, Clothing, Apparel and Luxury Goods industries
were under Trademark Spotlight in 2016 with more than 6400 applications being filed around
the globe. In order to avoid the menace of counterfeiting, where the counterfeit product
incorporates a well-known brand name, trademark enforcement is the best and most effective
tool. Fashion brands register their house brand name and key sub-brands. Some of the leading
luxury brands have been vigilant to safeguard their shape, colour, patterns, cuts, style etc. For
example, Christian Louboutin has trademarked red soles of their shoes. He has also sued Zara
for infringement.

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