Chapter - I

Introduction: IP protection in fashion design and apparel,

and dangers of potential knockoffs, Key issues and Trends

“There is no beauty in the finest cloth if it makes hunger and

unhappiness.”

— Mahatma Gandhi

1.0 Overview of Indian Fashion Industry

Indian fashion industry comprises of fashion designers, textile manufacturers,

embroiderers, local artisans, fashion photographers, make-up artists, hairdressers,
accessory designers, fabric weavers, garment constructors, etc. After the
independence, popularity of regional clothing gained momentum in India. Fashion that
made statement at this time involved the use of gold threads and sequins on the
dresses. Traditional Indian dresses were made using distinguished sewing techniques
and included embroidery works. The muse for such creations was the influence that
western culture exercised on the Indian traditional art at that time. Several designers
played a key role in the revival of traditional printing and embroidery techniques but
were largely confined to haute couture. The growing popularity of Indian embroidery
contributed to its national and international recognition. Embroidered garments
became one of the major fashion exports of India in this time. In addition to massive
influence exercised by Bollywood on fashion clothing and accessories, many fashion
designers emerged in the 1980s as pioneers in the industry. Their main artistic
creations involved designing the Indo-western fusion wear. During this period, one of
the major initiatives taken by Government of India was the establishment of National
Institute of fashion technology (NIFT) which became a pioneering institute of fashion
education in India. It has made immense contribution towards providing fashion
professionals to the country’s textile and apparel industry. 1 After the liberalisation of
Indian economy in 1991, the Indian fashion industry experienced a boost in the


1
ARTI SANDHU, INDIAN FASHION: TRADITION, INNOVATION, STYLE, (1st ed. 2014).

Page | 1
volumes of production and fashion trends. Larger fashion exports and booming retail
sector led to the growth of local manufacturing units and ready to wear (prêt-à-
porter) segment.2 The Indian fashion industry was valued at ₹2.9 billion in 2009.3

Fashion industry is characterised by large number of manufacturers, alternative

retailers, and marketing agencies. It also comprises of products that are brought into
market for a short period of time. There is easy entry and exit in the fashion retail
market. There are many competitors in the retail segment and consumer
preferences are also very dynamic. Besides, haute couture designs are created in
limited numbers and are customised. The haute couture houses are governed by
national standards of quality, design and manufacturing. As such, only few
consumers in the market can afford to buy them. Besides, garment manufacturers are
also creating cheap but high- quality garments, popularly known as ready-to-wear.
The ready-to-wear segment achieved greater boom in the 1960s which led to the
blurring of the division between the ready-to-wear and haute couture designs. This
was achieved by the designers as they were able to create distinctive and affordable
garments. Thus, the market for fashion got automatically divided into three categories
namely, mass brands, premium and luxury brands. These divisions represent the
distinction between the haute couture, ready-to-wear and mass production of
garments and fashion accessories. Mass fashion goods are produced in large
numbers and are available at reasonable price.

Fashion industry consists of multiple activities to create diverse products. Series of

steps are involved in the creation of a fashion article. All the three, namely, the
designer, merchandiser and the stylists are involved in the creative process. The
designer creates the initial design or concept which could be sold commercially. A
designer could be a head designer or a company owner, or a freelance or a consultant
designer. Thereafter, Merchandiser is responsible for coordinating the garment
manufacture and production process. A stylist’s work involves putting the
accessories and make up together with the garment to meet the expectations of the
consumers. There are different types of stylists such as wardrobe stylists, colour
consultants, etc. Each stage of creation of a fashion product is dependent on
various individuals who


2
Supra note 1.
Page | 2
3
Press Information Bureau, Indian Textile Journal, Department of Industrial Policy and Promotion.

Page | 3
are involved in multitude of activities according to their expertise and job requirements.
Indian fashion industry also has various associations and organisations operating at
different levels. They closely work with the designers, retail brands, suppliers, and
exporters. The handloom and handicraft sector consists of rich crafts such as
embroidery, stoneworks, jewellery, etc. There are various non-governmental
organisations that are also working on Indian fashion such as Craft Council of India
(CCI), All India Artisans and Craftworkers Welfare Association (AIACA), Rangasutra,
etc. Government organisations such as Clothing Manufacturers Association of India
(CMAI), etc. also conduct research in textiles and fashion.

Indian fashion industry is worth ₹1000 crores approximately with the market size worth
of ₹20,000 crores.4 However, Indian fashion industry holds only 0.2% share in the
world market. The textiles and apparel industry contributes to 2% to GDP in India
and 12% to country’s export earnings.5 India’s fashion retail market is valued at $50
billion in 2019. India is one of the largest exporters of textiles and fashion
accessories in the world.6

India’s Apparel market is largely unorganised with retail sector accounting to only 35%
of sales in 2016. However, average market capitalisation of fashion, apparel and
luxury players diminished to 40% in 2020 due to COVID-19 pandemic situation. 7

Online fashion industry grew by 51% in 2021 and witnessed 66% growth on various
brand websites.8

Indian fashion industry is dominated by several international brands as well as

Indian companies who have launched their own fashion labels. The industry runs on
fashion cycle, which may be short or long, depending upon the time each fashion
takes to reach its peak. 9
Fashion industry is now embracing new business models
where products are pre-owned, available on rent, repaired and refurbished and
continues to evolve. It is easier than before for the designers to enter markets to meet
the demands


4
Press Information Bureau, Indian Textile Journal, Department of Industrial Policy and Promotion,
2021.
5
Supra note 1.
6
Imran Amed, Anita Balchandani, Marco Beltrami, Achim Berg, Saskia Hedrich, and Felix Rölkens,
The State of fashion 2019, MCKINSEY & COMPANY, (Nov. 20, 2019),
https://www.mckinsey.com/industries/retail/our-insights/the-state-of-fashion-2019-a-year-ofawakening.
7
Supra.
8
Fashion E-commerce Report, Unicommerce, 2021.
Page | 4
9
The NIFT Manual, National Institute of Fashion Technology, Delhi.

Page | 5
of all types of consumers. Lifespan of fashion products is now more flexible and
more affordable than before leading to complete annihilation of a permanent form of
ownership of clothing. The diminished brand loyalty is contributing to the success of
new and emerging brands which are adopting new business models today. Since India
has a powerful and growing middle class, it retains its position as the focal point for
fashion likely to encourage entry of international brands in future. India is also a major
exporter of textile and fashion accessories. It is one of the most prominent players in
the international markets for fabrics.

With India’s varied and rich heritage of textiles, every region in India has its own
traditional dress. Indian fashion is gaining momentum worldwide with prominent
fashion shows organised in major cities of India. The contemporary style of urban
fashion involves juxtaposition of global trends with local practices of dressing
alongside influences from the west. The Indian couture uses handloom textiles an d
indigenous crafts which has brought the use of traditional dressing styles in high
fashion to the forefront. Use of khadi and zardozi works by Sabyasachi in his creations
is an impeccable symbol of diverse array of artwork sourced from various regions of
India.

India is home to fashion institutes such as National Institute of fashion technology

(NIFT), Indian Institute of fashion technology (IIFT) and other academies where
students receive professional training in fashion designing. The industry is huge with
massive potential especially in the retail sector. The fashion houses in India create
collections that appeal to local customers and meet the needs of the diverse markets
throughout the subcontinent. Most of the international brands collaborate with Indian
designers for launching their pieces into the Indian market. Since there exists
enormous variation in customer preferences, different approach is adopted for
different markets. For instance, Jimmy choo introduced gold and silver shoes and
clutches in India to cater to the needs of festive attires. Similarly, Christian
Louboutin, in partnership with Sabyasachi, has introduced classic Louboutin styled
shoes called Loubi Queen Sandal and handbag by using local hand embroidery and
vibrant colours. Urban classes in India covet royal clothes worn in the past, consisting
of heavy embellishments and rural styles. With economic changes in Indian markets,
urban classes have developed newer fashion tastes. Heavy consumption of
luxury and

Page | 6
branded fashion products impinges India’s traditional wear market. The urban
classes pro-actively participate in the public display of consumption of these high
end and branded fashion products.

Indian designers face pressures to strike “balance” between western influences and
authentic Indian traditional wear in creation of apparel designs. However, they have
also achieved tremendous success by tapping into indigenous craft techniques and
the preferences of the cosmopolitan populace through blending of traditional versions
of dressing with luxurious fashion styles. This fusion of global and local design reflects
the cultural shift in the preferences of India’s urban elite and middle classes. The
growth of contemporary fashion practices in India is based upon the consumption of
luxury fashion goods by the urban population. Urban educated women still prefer
sari and salwar kameez.

Contemporary fashion in urban areas is witnessing heavy consumption of traditional

sportswear producing brands such as Nike, Adidas, and Puma. There is also a great
interest in donning sportswear for fitness activities. Urban Indians with their local roots
easily connect with the global trends through mass media. There has been a massive
movement in dress innovation for women in India, both in the apparel and its design,
instances of which extend beyond the reckonings of European fashion. The
contemporary fashion in India is a hybrid of tradition and modern styles resulting
from the undeniable impact of globalisation. Indian fashion is unique as it blends the
global and the local context. This involves use of Indian textiles and crafts with social
and cultural changes that have taken place. Even the textiles and dressing which
formed part of nationalist movements in India, still resonates with many Indians and
are used to create versatile designs, desi chic look and other ideal designs.

The growth in the phenomenon of online and offline sale of fast fashion amongst the
Indian middle class has been a huge achievement. Distinctive designs with affordable
price have given a boost to the availability of various options in fashion. The fashion
designs and branded fashion companies utilise innovative tools to sell the latest and
trendy products online. The major shift that has been witnessed in the industry is the
growth of entrepreneurs since the last decade. These entrepreneurs are a major asset
for the industry as they have immensely contributed towards creativity skills, new
designs, environmental concerns, brands, and management techniques.

Page | 7
In addition to fashion designers, many of these entrepreneurs are also entering the
market to experiment with making and selling of fashion. Indian fashion industry is
unique in terms of its focus on slow fashion. The creations are more localised. There
is a huge unorganised sector and an individualistic approach to fashion. Most of the
production is homegrown with greater reliance on the use of indigenous craft
techniques. These fashion houses operate as small-scale units.

Noteworthy, the Indian apparel market is estimated to be worth 59.3 billion dollar in
2022, according to the data from Mckinsey’s fashionscope.10 This will make Indian
fashion industry position at sixth largest in the world. With online marketplaces,
plethora of brands are now available which are offering several options to cater to
the fashion tastes of the diverse range of customers. The connection of India’s
fashion with the past and its unique designs have made a global impact. The apparel
industry is one of the oldest. The industry is volatile and has witnessed positive and
rapid growth. With technology and great entrepreneurship, the industry today has
embarked on greater proximities between fashion entrepreneurs and the targeted
customers.

Famous fashion designers who are also successful entrepreneurs have played a big
role in escalating Indian designing to greater heights. Their impeccable skills gained
momentum with extraordinary craftsmanship even in comparison with European
fashion designers, their methods, and styles of designing. These Indian designers
have successfully carved out their identity and have made a global mark. These
designers include Ritu Kumar, Manish Malhotra, Tarun Tahiliani, Ritu Beri, Rohit Bal,
Gaurav Gupta, Ashish Soni, Amit Agarwal, Varun Bahl, Manish Arora, Shivan and
Naresh amongst many others. Some of these designers made humble beginnings as
they started from small boutiques to go on to become top fashion designers in India
and abroad. Their creations are an amalgamation of Indian traditional work and
international fashion. Their designs are inspired from various themes of architecture,
nature, and art. They also utilise traditional methods of village craft and designing for
the urban landscape.

Popular fashion brands for apparel and footwear, jewellery, cosmetics, and fashion
accessories have revolutionised the retail sector of India. These stores have been the


Page | 8
10
Supra note 6.

Page | 9
main distribution channels for clothing in India. Shoppers Stop, Westside, Raymond,
Globus, Lifetsyle and Ebony are some of the major fashion brand retailers. Some
retailers in metropolitan cities of India are even exporting their creations. Some of
the successful expansions include wedding outfits, Roopak of Mumbai, Diwan Saheb,
etc. Entry of large retail chains have pushed the independent retailers to expand and
modernise their concept, products, and services. There are also thousands of new
and emerging designer boutiques and studios mushrooming all over in India.
Prominent Indian designers are also opening their private studios and expanding their
retail networks. These designers not only run haute couture designs but also do prêt
and diffusion lines. It is interesting to notice how some indigenous designers have
forayed in fashion retailing by launching their stores in India and abroad. Thus,
Indian retail is transforming itself from being traditional to modern.

India’s retail has witnessed tremendous growth owing to relaxations in foreign direct
investment (FDI) by the government and the changes in lifestyles, standards of living
and choices of the new generation of consumers. Shopping malls have played a major
role in transforming fashion retailing in India. Since the organised fashion retailing is
growing and developing at a faster pace, the global brands are no longer confined to
large cities but are reaching out to smaller towns. Apparel industry is one of the largest
with retail segment encompassing cosmetics, jewelleries, watches, and fashion
accessories. Fashion segment occupies 60% of the retail sector. Fashion designing
forms a mainstream career for talented youth. Some of the prominent fashion institutes
of India have made a global presence by organising fashion shows abroad and
building customer relations overseas. Indian designers are today making a mark in
building their brand value, extending their product portfolio and enhancing their
manufacturing capacity.

Fashion is a creative, trend-based industry. The prevalence of “knocking off”, fashion

industry’s parlance for imitation of another company’s items or styles is common and
can represent infringement of another’s intellectual property (IP). 11
Modern fashion
design comprises of haute couture, ready-to-wear and mass market. Haute couture
designs, being unique and produced in small numbers, enjoy full design protection, if


11
GUILLERMO C. JIMENEZ & BARBARA KOLSUN, FASHION LAW-A GUIDE FOR DESIGNERS
AND ATTORNEYS, (2nd ed. 2014).

Page | 10
registered as ‘design’, or full copyright protection, as ‘works of artistic craftsmanship’.
Ready-to-wear are standard sized collections which are not customised and are
produced in small quantities for the purposes of exclusivity. Both ready-to-wear and
haute couture collections are meant for international fashion events. Conversely, mass
market involves wide range of customers and intense competition where independent
designers or Small and medium Enterprises (SMEs) produce in large numbers.

1.1 Relevance of Intellectual Property Rights for Indian fashion industry

In the present context, the idea of intellectual property rights is highly debatable. There
are many studies that justify IPR and its relevance. Intellectual property rights are
crucial as they boost innovation, prevent piracy and counterfeiting, and rewards the
original creator. On the contrary, the critics of intellectual property rights suggest that
too much of intellectual property protection is likely to increase the value of
commodities and may not benefit the ultimate consumer.

The view that justifies intellectual property rights reinforces the fact that IPRs are
crucial to prevent counterfeiting and piracy. The Indian fashion industry suffers from
massive piracy and counterfeiting. According to a study, the problem of
counterfeiting will increase in the times to come and should be viewed as a serious
problem. It needs to be addressed as intellectual property plays a significant role in the
economic growth of a country.12It is argued that a decrease in the supply of
counterfeits would lead to an ultimate increase in the demand for genuine products.
This would encourage extended range of products to be offered as choices to the
consumers. Incentive to innovate can encourage the producers to offer goods at
reasonable prices.13

Strengthened intellectual property systems not only promote the legitimate interests
of IP holders and meet expectations of consumers, but also promote the economic
development of a nation. Several studies have found that counterfeiting also has


12
Khadija Mohamed, Fighting counterfeiting: Importance of enforcement of Intellectual property rights,
9 JOURNAL OF INTERNATIONAL COMMERCIAL LAW AND TECHNOLOGY 249-257 (2014).
Page | 11
13
Supra.

Page | 12
negative impacts on the social, economic, and political conditions of a country. 14

Counterfeiting causes economic damage in terms of loss of profit, deterioration of

quality and hampers the competitiveness of businesses. Piracy could destroy jobs,
thus adversely affect government revenue, trade, innovation, foreign investment and
threaten the safety of consumers.

Plethora of empirical evidence establishes that a stronger intellectual property

protection system increases foreign direct investment, innovation as well as economic
development of both industrialised and developing nations. 15
Effective intellectual
property rights assist in job creation. Strong intellectual property rights foster
innovation which ultimately leads to sustained economic growth. Without adequate
intellectual property protection, businesses will become slow, innovators will be unable
to track investments and jobs will be lost. This is suggested by evidence from all
nations. Effective intellectual property protection leads to job growth and economic
prosperity. There is ample of economic evidence which conclusively suggests that
intellectual property rights are correlated with knowledge diffusion, increased
innovation, and economic development and growth. Intellectual property rights
propel innovation, job creation and investment.16

Thus, Intellectual property rights have played a crucial role in incentivising the
dedication of talent, time and financial resources needed for an innovative activity.
There is abundant of academic literature that reflects the importance of intellectual
property rights and several studies documenting their impact. For instance, India is a
vivid example on how stronger intellectual property protection encouraged
innovation in its software industry and prevented the workforce migration to other
countries. It helped India attract significant investment and create jobs. It stimulated
its local industries.

IPR is a dynamic tool for wealth creation. Development of IP assets is in the interest
of industries as it helps provide a strong base for new ideas. With more
globalisation,


14
Supra note 12.
15
Meir Perez Pugatch, Intellectual Property Policy-Making in the 21st Century 3(1) WIPOJ 72-76
(2011).
16
Dr. Kristina M.L. Acri,nèe Lybecker, Economic growth and prosperity stems from effective intellectual
Page | 13
property rights, 24 GEO MASON L. REVIEW 865 (2017).

Page | 14
industries started to gain from an improved infrastructure of IPP worldwide. IP assist
in appreciation of value of innovation and creativity. It helps create a system that
balances rights of creators and inventors with the interests of society. For a nation to
take full advantage of its innovative and creative resources, IPR must be seen as an
important part of the fabric of modern societies.17

According to a study on econometric evidence on how IPR policy changes impact

industrial development, it is suggested that stronger IPR systems accelerate industrial
development. 18
The policy debate over stronger intellectual property protection in
developing countries rests on the argument that strong IPRs can hamper the industrial
development in developing countries. Bransletter (2017) in his study reviews the
empirical evidence and suggests that strong intellectual property rights enhance
industrial development by attracting foreign direct investment.19 In fact, weak IPR may
bring short-lived benefits in Asia and developing countries. But in the long run it
could bring serious costs. Various factors such as weak currencies, low wages and
weak intellectual property rights gave impetus to local manufacturers in Asian
countries to manufacture products that they did not invent. Weak IPR systems led to
manufacturing of low-cost products rather than encouraging innovative product
development.20

According to a study on the impact of IPR on khadi in India, IPR has influenced the
growth of khadi and its sustainability. Coining IP as the main strategy, Khadi could
make better profits and sales. Research and innovation will help in sustainable
development. IPR will convert the local brand into a global brand. IPR will boost the
spirit of competition. Thus, IPR is essential for khadi as it would also assist in
technology upgradation and enhanced competitiveness.21

There are several studies that reflect a negative view on the strength of IPR and its
contribution to the industries and nation. They challenge the pervasive incentive
rationale under the IP law and focuses on controversies in the application of IP law

17
Rita Hayes, Promoting intellectual property for economic growth, 36 UAND. J. Transnational 793
(2003).
18
Lee Bransletter, IPR, innovation and development: Is Asia different?, 8(1) Sage Publications 5-25
(2017).
19
Supra.
20
Supra note 7.
21
D.N. Sowmya and Dr. P. Paramashivaiah, Status of IPR in Khadi – An analysis, 7(28) UGC CARE-
Page | 15
SHODH SARITA 145-151 (2020).

Page | 16
brought in by new social, economic, and technological changes. The critics of IP
emphasise upon the need for development of ways to regulate IP in such a manner
that the grant of exclusivity reflects full range of interests. There are big problems in
justifying IP based on incentives. The incentive story does not take into consideration
the question whether strong IPR effectively distributes the fruits of IP.22

Many justifications to intellectual property rights strongly emphasise upon labour

theory of the author, creator, or inventor. But these theories restrict the rights of others
to use their own bodies in which they have full legal and moral rights. Every intellectual
property right eventually becomes a property claim over how another person uses his
body. Enforcement of IPR in dance means force can be used against another
person to stop him from taking certain steps or using his hands in certain ways. IPR
stifles spread of free ideas and is detrimental to public interest. They create statutory
monopolies that infringe right of owners to ownership of their own bodies.

Another theory on which IPRs are justified is the personality-based theories, most
claims of which are confined to artistic creations. IPRs restrict the freedom of others.
It is hostile to liberty-based arguments as they restrict the liberty of others to use
intangible rights. This does not happen in case of tangible property rights.23

Recognising intellectual creations imposes costs on society as they are in the form of
private property. Exclusive rights are bestowed upon the right holder which prevent
others from using their ideas. Excluding others from using those ideas severely
hampers the application and further development of the creation. IPR creates
monopoly where the IP right holder could earn abnormal profits. It imposes immediate
costs on society. There is more loss to the consumers compared with the gain of the
right holder as monopolised product is now available at a very high price. The idea of
private property reinforced by IPRs involves compromise between actual costs and its
claimed benefits. Inappropriate incentives are given to the right holder for creation of
his monopoly right and may not justify the costs. The cost of production should be


22
Shubha Ghosh, The IP incentive: not so natural as to warrant strong exclusivity, 3 SCRIPTed 96
(2006).
23
Tom G. Palmer, Are patents and copyrights morally justified-the philosophy of property rights and
ideal objects, 13 HARV. J.L.& PUB. POLICY 817 (1990).

Page | 17
equal to its social value. IPRs are likely to decrease the social benefits with an increase
in its duration. Greater the term of IPR, greater is the ability to derive monopolistic
profits. Noteworthy, monopoly generated by IPR is costlier in respect of intellectual
ideas than consumer items. This is because it leads to diffusion of knowledge and
greatly impacts the interests of future generations.

Intellectual ideas are propagated, revised, and advanced by people belonging to

different generations. Any intellectual ideas are a culmination of joint efforts of several
persons from different generations. Against this background, it is rather difficult to
justify the grant of an exclusive right to a latest contributor. The legitimate rights of the
earlier contributors are completely ignored in the process. One of the major limitations
of IPR is witnessed around traditional knowledge. So much traditional knowledge of
the developing countries has been patented by developed economies relegating the
entire community’s right. Thus, the philosophical foundations on which IPR is based
is very much controversial. The protagonists of TRIPS agreement state that the
benefits of IPR outweigh its costs. But based on above arguments, the rules of the
agreement appear to be highly iniquitous. Any superiority claims to IP should be based
on cost-benefit analysis to be acceptable. The benefits of TRIPS agreement must
outweigh its costs. The protagonists of IPRs argue that IPRs as private property brings
more benefits than costs. An approach to IPR can only be justified by taking into
consideration factors such as the goals and the given community. According to a study
on the impact of IPR in Indian pharmaceutical sector, the costs and benefits of IP
varies from sector to sector and country to country. 24
Thus, sector-wise studies is
necessary to understand the implications of IP for a country.

From the above, it is clear that pro-IP arguments are largely based on natural rights
theory and utilitarian theory. Libertarian proponents of IP who base their arguments
on utilitarianism include Rand, Schulman and Galambos while those who advocate IP
on grounds of natural rights are Spencer and Spooner. 25
Natural rights theory
considers IP as product of one’s labour. Utilitarian theory connects IP with wealth


24
Ram Singh, Implementation of IPR regime: The justification question, 30 SOCIAL SCIENTIST 61-82
(2002).
25
N. Stephen Kinsella, Against Intellectual property, 15 JOURNAL OF LIBERTARIAN STUDIES, 1-53
(2001).

Page | 18
creation and utility maximisation. There are also several opponents of IPR which
include Rothbrod, McElory, Palmer, Lepage, Bouchaert and Kinsella. 26 According to
the contrary view, it is not clear if all IP laws change (increase or decrease) the overall
wealth.27 It is not clear if IPRs are necessary for encouragement of creative works or
that gains from innovative works outweigh the associated costs of an IP system. Net
gains in wealth are not clearly established by the econometric studies. Also, the
ideology of IPRs is based on a fallacy that creativity only stems from profits. These are
some of the arguments associated with IP. Proponents of IPR justifies them on certain
grounds. The opponents criticise IPR as they create monopoly and restricts freedom
of an individual. Thus, the relevance of IPR is highly debatable in the present
context.

The benefits of IPR and its impact on costs varies from industry to industry and
economy to economy. From a consumer’s perspective, increase in prices of
products due to IPRs is not beneficial. In context of Indian fashion industry, findings from
a study involving an empirical analysis on impact of IPR on khadi demonstrates that
IPRs have had a positive impact on khadi in India.28 However, the problem with
Indian fashion industry is that it relies heavily upon trademark protection. This
pushes the fashion designers towards expensive creations for brand building thereby
distorting innovation and increasing the costs of fashion articles. 29 Compared with
copyright and design registration, cost of trademark registration is much higher. The
present studies reveal that more applications are filed for trademarks and patents by
the fashion industry in India.30 Thus, fashion professionals are not able to utilize IPRs
effectively which is detrimental to consumer interests. Copyright and design
registration is cheaper than trademarks and patents registration in India. Embracing
other IPRs than trademarks will positively impact the industry and consumers as the
costs of production of fashion articles will reduce due to less registration costs which
would benefit the ultimate consumers. Thus, the problem of underutilisation of IPRs
by Indian fashion industry


26
Supra.
27
Cole, Patents and copyrights: Do the benefits exceed the costs?, 15 JOURNAL OF LIBERTARIAN
STUDIES 79-105 (2001).
28
Supra note 1.
29
Supra.
30
Vishaka Agarwal, IPR registration in fashion industry of India, 24 JOURNAL OF INTELLECTUAL
Page | 19
PROPERTY RIGHTS 35 – 40 (2019).

Page | 20
needs to be studied. This is significant because the industry needs to utilise other IPRs
and not rely heavily upon trademark protection alone.

1.2 Research Gaps

There is low registration of IPR in fashion industry of India. An Analysis of the reasons
remains to be the time and costs involved (primarily). (Shirwaikar, 2009; Reddy &
Shivshankar, 2010; S.Bharathi, 2016 and Vishaka Agarwal, 2019). But utilization of
IPRs is also low. No research is presently available on reasons for low utilization of
IPRs by Indian fashion industry. Available literature provides insights on the problems
faced by fashion industry in utilization of IPRs globally. (Dan Johnston, 2013;
Guillermo C. Jimenez & Barbara Kolsun, 2014.)

Underutilization of IPRs in the mass market and the reasons thereof, though has been
studied in European and American context, similar studies in Indian context remain
untouched. (Iona Silverman, 2013; Jenniffer Darcy, 2013; Buchalska, 2014; MGA
Pavis, 2019).

Literature associates the failure of fashion industry in fully utilizing IPRs to piracy
paradox, utilitarianism, time, and costs constraints. (Raustiala & Sprigman, 2006;
Suthersanen, 2011; Monseau, 2011; Clark, 2006, Burstall & Silverman, 2014).
However, a perspective on the difficulties of fashion professionals in adhering to the
applicable criteria and standards of protection given under the current IP laws is
lacking.

No in-depth study has been done addressing the legal reasons for the under-utilization
of IPRs by the fashion industry and the levels of protection needed in India.

Page | 21
1.3 Statement of Problem

Fashion industry is unable to use IP law to its maximum advantage for reasons, which
may be, attributed mainly to time, costs, and applicable criteria for grant of IP.
Research is necessary to identify the reasons for low utilisation of IPRs in fashion
industry so that the industry can derive maximum economic benefits from the
intellectual property that they create.

1.4 Research Objectives

1. Determining the reasons for low intellectual property utilization in Indian fashion
industry inspite of several legal interventions.

2. Defining the criterion and procedural aspects of protection for modern fashion
designs and accessories in India and Europe.

3. Determining the ownership patterns of IP rights for fashion designers vis-à-vis

other artists, staff, non-staff members, retailers, distributors, etc. in India and
Europe.

4. Determining the reasons for the lack of protection for traditional methods and
ancient forms of art applied on fashion clothing and accessories in India and
Europe.

1.5 Research Questions

RQ1. What prevents the fashion industry from effectively utilizing the existing
intellectual property rights framework in protecting their innovative fashion creations in
India and Europe?

RQ2. What are the reasons for deficiencies in existing IP laws in safeguarding the
fashion design rights in India and Europe especially in cases of mass
market/production?

Page | 22
RQ3. What standards determine the criteria and procedures for protecting modern
fashion designs in India and Europe? Can the existing European standards, if adopted,
benefit India?

RQ4. What are the standards for determining ownership of IP rights in fashion articles
for different fashion designers and other artists in India and Europe?

RQ5. What are the reasons for inadequate protection of traditional cultural expressions
(TCEs) that are widely used in creating apparel and accessories designs in India
and Europe?

1.6 Review of Literature

Fashion clothing and accessories are not fully protected under copyright law or design
laws in India. Trademarks, patents, and geographical indications offer limited
protection. There are also several exclusions relegating them into public domain.
The existing literature on intellectual property and fashion in India is scanty. There
are some articles, but they also do not fully examine the concept of intellectual
property protection to fashion design.

Barbara Kolsun and Guillermo C. Jimenez in their book, “Fashion law: A guide for
31
Designers, Fashion executives and Attorneys”, observed that the European Union
(EU) affords an independent and exclusive right against design copying to its fashion
designers in contrast with other jurisdictions such as American laws. The impact of
unregistered design right (UCD) introduced by European scheme is difficult to fathom
with no concrete conclusions possible as a smaller number of cases that pertain to
enforcement of UCD rights have been witnessed yet. But despite the dearth of
cases, European scheme on UCDR has been immensely beneficial for high-end
fashion designers and for out-of-Court settlement in cases which are largely
unreported. Most of the countries are struggling in adoption of a successful IP policy
to combat counterfeits and knockoffs in fashion. There are numerous obstacles, both
conceptual and procedural, for ensuring strong IPP for fashion products. A
comparative analysis of key legal issues for fashion companies in France and
India suggests that IP

Page | 23
31
Supra note 5.

Page | 24
protection and enforcement is faster in continental countries than in India. Thus, EU
laws provide strong protection to fashion designs and represent a model capable of
fundamentally transforming IP protection for fashion. Rosie Burbidge in the book
32
“European fashion law: A practical guide from start-up to global success”, examined
the obstacles in registration of colour marks and shape marks within EU with particular
reference to stringent standards of ‘distinctiveness’ for such marks. It elaborates the
simpler IP registration systems in France and its approach to image rights. These
statutory image rights can be restricted for privacy concerns and a different
approach may be adopted by each country. The courts, in some cases, have
recognised UCD rights in clothing designs making the right very useful for the
industry. The French
courts have given broader protection to design rights so far as applicability to
fashion industry is concerned. Thus, judicial interpretations in French law are much
more inclusive for fashion clothing and garments.

Dan Johnston in his book “Design protection: A practical guide to the law on plagiarism
33
for manufacturers and designers, elaborates on the range of legal protection
available to fashion designs in the UK. The underlying principles of design rights in UK
vis-à-vis EU legislations suggest a greater need for harmonisation of EU laws
against unauthorised copying. There are few judicial cases in UK where issues were
raised for inclusion of dresses as ‘work of artistic craftsmanship’. Since in such
cases originality could not be established, the court concluded that dresses are not
eligible to copyright protection. Copyright protection is denied to fashion accessories
and jewellery if their designs are inspired from nature and is close to natural forms in
UK. This is with reference to cases prior to the withdrawal of UK from the EU.

34
Arti Sandhu in the book “Indian fashion: Tradition, Innovation and Style”, says that
the distinguishing factor of Indian fashion industry is the “trademark” of Indian fashion.
Indian textiles, embellishments, crafts, and indigenous techniques are employed to
retain the traditional aesthetics and balance it with modern and global design
elements. Owing to lessor utilization of design protection for garments or dress


32
ROSIE BURBIDGE, EUROPEAN FASHION LAW: A PRACTICAL GUIDE FROM START-UP TO
GLOBAL SUCCESS (1st ed. 2019).
33
DAN JOHNSTON, DESIGN PROTECTION: A PRACTICAL GUIDE TO THE LAW ON PLAGIARISM
FOR MANUFACTURERS AND DESIGNERS (4th ed.1995).
Page | 25
34
Supra note 1.

Page | 26
designs, most of the couture houses rely upon trademarks which protects only the logo
and not the embellishment or motifs used on the dress. This pushes the designers
towards expensive creations for brand building thereby distorting innovation.

Adithya Reddy in the article “Legal protection for fashion design”,35 explores the legal
position of protection of fashion designs in United States, European Union and India.
The author explains the indifference of the French copyright law to conform to the
stricter requirements of originality for grant of copyright to fashion design. Pranjal
36
Shirwaikar in the article “Fashion copying and design of the law”, refers to fashion
industry as “negative spaces” since IP policies fail to protect fashion creations to a
large extent. Some of the ancient art forms applied to fashion products fall outside the
purview of IP leading to conflicts. Several Geographical indications are registered in
India for textiles as fabrics. The traditional copyright regime has the effect of restricting
the free dissemination and distribution of fashion trends. The social, cultural function
of a dress has undergone a sea change with logos flamboyantly publicised and their
visibility improved. Thus, apparels and garments can be granted IP rights for
incentivising the monopoly right in the mind and in fighting fashion piracy despite the
various legislations.

37
Vishaka Agarwal in the article “IPR registration in fashion industry of India”, says
that rate of registration of designs for fashion industry is low in India. India needs to
reshape its IP laws and augment IP awareness amongst artisans and craftsmen at the
grassroots level. Law needs to simplify IP registration processes keeping in mind the
literacy levels of artisans and craftsmen. Registration processes are unwieldy due to
various reasons such as lessor number of IP offices, costs, and complicated procedure
of filing. The time for grant of IP is long with absence of legal guidance from IP offices.
Maximum number of applications are filed for trademark and patent registration in
India. The number of applications filed for design right is still low compared with
trademark.


35
Adithya Reddy & Gowtham Shivshankar, Legal Protection for fashion designs, 3 THE INDIAN
JOURNAL OF INTELLECTUAL PROPERTY LAW, 85-101 (2010).
36
Pranjal Shirwaikar, Fashion copying and design of the law, 14 JOURNAL OF INTELLECTUAL
PROPERTY RIGHTS 111–121 (2009).
37
Vishaka Agarwal, IPR Registration in Fashion Industry of India, 24 JOURNAL OF INTELLECTUAL
PROPERTY RIGHTS 35-40 (2019).

Page | 27
MMS Karki in the article “Nontraditional areas of Intellectual property protection:
38
Colour, Sound, Taste, Smell, Shape, Slogan and Trade dress”, says that
registration of olfactory marks for perfumes and fragrances is controversial. Very
little legislation or jurisprudence is available on this issue. In Europe, there are
conflicting decisions pointing to inconsistent view over registration of smell marks.
Scents are excluded for reasons of difficulties associated with graphical
representation or functionality or for not being visually perceptible. Thus, even if the
smell of the perfume is the result of the nature of the product itself, the requirement
of graphical representation is very difficult to achieve. Approach taken by French and
Dutch courts is to distinguish between the material developed to emit a certain
fragrance and the fragrance itself. The material can be protected by copyright law
since it has no stable properties. But protecting smell marks continues to a
challenging area of modern trademark law.

Agnieszka A. Machnicka in the article “The perfume industry and intellectual

property law in the jurisprudence of the Court of Justice of the European Union and
39
of national courts”, examines the judicial and doctrinal reaction in respect of IP for
perfume products. Protection for fragrances is not particularly accommodated by the
existing IP regimes for the struggle between copyright and patent law. The
exhaustion of trademark is possible under specific circumstances subject to the
assessment that the trademark proprietor gives express or implied agreement that
the goods be kept in market. Thus, European Court of Justice (ECJ) recognised
trademark rights for perfume testers stating that the trademark owner can shape the
status of the goods trademarked by his company under a contract for selective
distribution network which does not allow free marketing by other entities.

40
Antonella Barbieri, “Colour Trademark protection in the fashion industry”, makes a
comparative analysis of approach undertaken by French, Italian, EU and US courts
in enforcement of colour trademarks by fashion houses. The Louboutin saga
triggered


38
MMS Karki, Nontraditional Areas of Intellectual Property Protection: Colour, Sound, Taste, Smell,
Shape, Slogan and Trade Dress, 10 JOURNAL OF INTELLECTUAL PROPERTY RIGHTS 499-506
(2005).
39
Agnieszka A. Machnicka, The perfume industry and intellectual property law in the jurisprudence of
the Court of Justice of the European Union and of national courts, 43(2) INTERNATIONAL REVIEW
OF INTELLECTUAL PROPERTY AND COMPETITION LAW 23-158 (2012).
Page | 28
40
Antonella Barbieri, Color trademark protection in the fashion industry, 27(7) W.I.P.R. 42-43 (2013).

Page | 29
the questions of protecting colour marks for fashion and are recognised in France, EU
and India.

Charles-Henry Massa and Alain Strowel in the article “Community design: Cinderella
41
revamped”, there is no presumption of ownership in case of UCD right or UCDR.
The right is applicable to secondary infringements. It is a mere right against copying.
EC Regulation 2002 which introduced UCDR is more advantageous than the
community trademark. Since the scope of protection is wide with less formalities of
registration, designs cannot be revoked unlike community trademarks in EU.

42
Victor M. Saenz in the article “The unregistered community design”, UCDR is a form
of prompt and comprehensive protection for design without involving any extra costs.
This right is specifically for designs for which registration is beyond contemplation and
are launched for shorter period of time. Thus, UCD is meant to meet the needs of
the industry without resorting to copyright or unfair competition law. UCDR does not
grant any monopoly right but merely the right to prevent copying.

43
Anna Reid in the article “Fashion victims: this year's big cases so far”, states that for
UCDR, proof of individual character is not a requirement in enforcement actions. Thus,
UCDR is recognised by ECJ in garments especially with short life span. The right is
enforceable against giant fast fashion retailers who produce and sell cheap look-a-like
products. Moreover, recent cases in EU have made it difficult to register shape
marks unless they depart considerably from the norms of a particular sector, for
example, footwear. It is difficult to establish norms in case of two-dimensional
designs.

Jennifer Darcy in the article “Under-regulated or under-enforced: intellectual

44
property, the fashion industry and fake goods”, says that enforcement of UCDR is
not being actively pursued across Europe with dearth of litigation in this area. Many
judicial decisions in Europe reflect the belief that fashion is an art worthy of
protection. Most of the decisions in France have spurred the French legislators to
enforce stringent


41
Charles-Henry Massa, Alain Strowel, Community design: Cinderella revamped, 25(2) E.I.P.R. 68-
78 (2003).
42
Victor M. Saenz, The unregistered community design, 24(12) E.I.P.R. 585-590 (2002).
Page | 30
43
Anna Reid, Fashion victims: this year's big cases so far, I.P.M. 57-58 (2014).
44
Jennifer Darcy, Under-regulated or under-enforced: intellectual property, the fashion industry and
fake goods, 35(2) E.I.P.R. 82-92 (2013).

Page | 31
sanction in trademark infringement lawsuits with border controls for fighting fashion
piracy. Design right overlaps with other intellectual property rights such as patent,
trademarks, copyright has led to design rights remaining largely under-utilised. UCD
is a complementary protection to registered community design (RCD). It forms a
‘bridge’ before a formal application is filed for design registration.

Holger Gauss, Boriana Guimberteau and Lorenzo Litta in the article “European
45
Union Intellectual property rights”, says that French courts do not refuse copyright
protection to fashion creations even if considered commonplace. Courts recognise
copyright in dresses along with automatic ownership rights of the company for fashion
goods produced commercially unless disputed. There is no such presumption of
ownership in case of trademarks. Scope of copyright protection in France is broad with
protection to fragrances confirmed in few cases. Thus, colours, arrangements and
shapes of the fashion products is effectively protected against counterfeits in Europe.

Estelle Darclaye makes a comparative study of case laws relating to fashion design
within the EU in the article “Are fashion designers better protected in continental
Europe than in the United Kingdom? A comparative analysis of the recent case law
in France, Italy and the United Kingdom”, 46
and refers to the different approach
adopted by the French courts in interpretation of copyright and unregistered design
right protection additionally to the efforts of EU towards harmonisation of design rights.
The article suggests that French courts do not follow any rigid and stringent
standards of originality and novelty requirements while interpreting French IP code in
respect of fashion accessories. Copyright is recognised in handbags and shoes
through liberal interpretation of legal doctrines taking a divergent view from the
necessities of EU community directives.

Ruth Burstall and Iona Silverman in the article “Designers face uncertainty in Europe”,
47
says that if narrow interpretation is given to the scope of registered design


45
Holger Gauss, Boriana Guimberteau, Lorenzo Litta, European Union Intellectual property rights, 5
LANDSLIDE 19-27 (2012).
46
Estelle Derclaye, Are fashion designers better protected in continental Europe than in the United
Kingdom? A comparative analysis of the recent case law in France, Italy and the United Kingdom,
JOURNAL OF WORLD INTELLECTUAL PROPERTY, (December 1, 2009),
https://ssrn.com/abstract=1578639.
47
Ruth Burstall, Iona Silverman, Designers face uncertainty in Europe, 239 MANAGING
INTELLECTUAL PROPERTY 34-36 (2014).

Page | 32
protection, there will not be any advantage for designers to apply for a registered right
within the EU. Designers who do not apply for RCD would still get benefit from UCDR.
Courts are seen to follow a permissive approach in respect of UCDR which is available
for a limited duration. Moreover, the design law should consider designer as the real
and default owner rather than the one who commissions the work. However, a
meaningful protection under design regime is absent owing to large number of
overlaps. Thus, the designers are compelled to seek other intellectual property rights
as a more reliable form of protection.

Alexandra Mouno, Georgeta Popescu, Mihaela Dobre and Sabina Olaru in the
48
article “Legal protection of fashion creations”, says that copyright in France plays a
crucial role in clothing, textiles, and shoe industry. France has the strongest legal
protection for fashion creations and the most liberal copyright through doctrine of
unity of art which confirms copyright protection to fashion products with utility
function.

Shivam Vikram Singh in the article “The interplay between copyright and designs in
49
India”, says that blurred design and copyright overlaps in Indian IP regime impact
the applied art industry. Since haute couture designers produce in limited numbers
(not exceeding fifty), their work retains copyright in addition to design right. Thus, the
law clearly makes the distinction between “artistic works” and “mass production of
such works”. This leads to ambiguities where no conclusions can be drawn in the
absence of clear directions from the courts.

Uma Suthersanen in the article “Function, art and fashion: Do we need the EU Design
50
law”, says that the purpose of doctrine of functionality is to demarcate the patent law
from the design law and that this approach is flawed due to several reasons. First, the
limited protection offered by UCDR. It is only a restrictive anti-copying right for fashion
goods which are cyclical in nature. UCDR may have benefits of automatic protection
for short-lived products and less registration costs. Second, the compatibility between
EU design law and national design law of European countries raises complex


48
Alexandra Mouno, Georgeta Popescu, Mihaela Dobre, Sabina Olaru, Legal protection of fashion
creations, 65 INDUSTRIA TEXTILÂ 95-100 (2014).
49
Shivam Vikram Singh, The interplay between copyright and designs in India, W.I.P.R. 1-3 (2016).
50
Uma Suthersanen, Function, art and fashion: Do we need the EU Design law, QUEEN MARY
SCHOOL OF LAW LEGAL STUDIES RESEARCH PAPER NO. 88/2011, (Oct. 17, 2011),
Page | 33
https://ssrn.com/abstract=1945142.

Page | 34
questions. Third, functionality doctrine is cumbersome when applied across different
arrangements within the trademark, design, and copyright laws. The criteria of
application of this doctrine by legislature and judiciary is questionable for pragmatic
considerations. The differences in duration of protection by each intellectual property
right may lead to fashion product being protected under a wrong IPR thereby stifling
competition. The modern notion of design is devoid of old century’s division of art-
function. Fashion is art, whether functional or not and may not be appealing to the eye.
Thus, this modern view may be embraced by the legislature and judiciary.

Richard Milchoir in the article “How to prove if shoe is protected by copyright and
who owns it?”, 51 explores the authenticity of the argument that one can assume oneself
to be the author of a work and creative process for the purposes of copyright if the
authorship is not disputed. However, French courts have taken divergent view in few
cases where authorship is not established despite the absence of the claim.

Despite poor working conditions faced by fashion models, their work is expressly
excluded from the scope of IPRs around the world, writes MGA Pavis in her article " In
fashion, one day you are in, the next you are out: comparative perspectives on the
52
exclusion of fashion models from performer's rights”. The article challenges the
exclusion of models from performer's rights in breach of international covenants. Even
though France does not recognise neighbouring rights for fashion models, yet the
French employment law grants them privileges that extend beyond the benefits of
personality or image rights. Estelle Derclaye in the article “French Supreme Court rules
53
fashion shows protected by copyright – what about the UK?”, says that fashion
shows are copyrightable. From a comparative outlook, it raises questions if fashion
shows can be protected in the UK. It may be argued that they are “dramatic works”
since models walk on the ramp in a particular order. This could be considered original.
Thus, it also raises the question whether fashion shows can be protected in India
and which intellectual property should be applicable to it.


51
Richard Milchoir, How to prove if shoe is protected by copyright - and who owns it? 10 JOURNAL
OF INTELLECTUAL PROPERTY LAW & PRACTICE 156-157 (2015).
52
Dr. Mathilde Pavis, In Fashion, One Day You Are in, the Next You Are out”: Comparative
Perspectives on the Exclusion of Fashion Models from Performers’ Rights, 41 (6) EIPR 347-358
(2019).
53
Estelle Derclaye, French Supreme Court rules fashion shows protected by copyright – what about
the UK?, 3 JOURNAL OF INTELLECTUAL PROPERTY LAW & PRACTICE 286-287 (2015).
Page | 35
1.7 Hypotheses

Based on our extant survey of literature, following hypotheses have been formulated:

H1. Intellectual Property Rights in fashion creations and accessories are better
protected under European I.P. Law than in India.

H2. The legal requirements for the grant of I.P. in Europe are much more inclusive for
fashion creations than those which exist in Indian I.P. Laws.

1.8 Research Design

Research Interpretivist
Paradigm

Research Design Exploratory

Unit of Analysis 157 sample include the designers (30), boutique owners (30),
small unit owners (30), models (30), fashion stylists (30) and
fashion experts (7).

Perspective Multi-stakeholders (designers, models, stylists, etc.)

Target List of persons closely associated with fashion designing from

Population the cities of New Delhi, Mumbai, Kolkata, Chennai, and Agra.

Sampling Simple random sampling

Technique

Data collection Structured Interviews

Method

Page | 36
1.9 Research Methodology and data collection, Rational for sample collection
and data analysis

The study used qualitative research to explore issues relating to utilization of

intellectual property rights by Indian fashion industry. Studies similar to the line of
inquiry suggest the use of qualitative method of data collection as appropriate (Diega,
2019; Suk & Lee,2013; Doagoo, 2017).

In this study, data was collected using qualitative research (structured interviews).
Through an exploratory research design method, 157 random participants were
chosen for interview from five different cities of India. They consisted of fashion
designers, boutique owners, small unit owners, fashion models, fashion stylists and
fashion experts. They were chosen because they are closely associated with fashion
designing. Structured interviews were used as qualitative research methodology
(Kvale & Brinkman, 2008). The interviews were held telephonically and lasted for
approximately twenty to thirty minutes followed by transcription and analysis of the
responses by coding them into themes and broad categories. The researchers, while
conducting such interviews, followed the standardized interview questions (Huffcutt
& Arthur, 1994).

In the first stage, 30 participants from each group of fashion designers, boutique
owners, small unit owners, fashion models, fashion stylists and 7 fashion experts were
selected randomly and interviewed. They were chosen randomly from a list of selected
cities. These cities were chosen based on their significance and contribution to
Indian fashion industry. To begin with, the interviewees were explained the purpose
of the study. In the second stage, the interviewees were asked about the need for
protection of their creative works and the problems associated with non-recognition
of their IP claims. The following is a representation of the key questions asked during
the structured interviews:

From fashion designers:

 Do you feel threatened if your dress designs are copied by others?
 Do you feel that labels are enough to protect your dresses and the
techniques or artwork made on your dresses?

Page | 37
  What type of protection will you prefer for your design – long-term protection
or short-term protection?
 If you work in team, will you share rights in your creation with others?

From boutique owners:

 Do you rely upon labels or other rights to protect the products you sell?
 What is your experience with piracy?
 Some designs stay in the market for short time. Do you feel the need to
protect them?
 What type of protection do you want for your products – long-term protection
or short-term protection?

From small unit owners:

 Do you feel the need for long-term protection of your designs?
 Are you able to register fashion designs? Is there a problem?
 Why do you rely heavily on labels? Do you feel the need for some other
protection?
 What are your concerns about piracy?
 Do you feel your dress designs/fashion designs are well protected?

From fashion models:

 Do you feel the need to have long-term right in your own photograph?
 Do you feel the need to protect your photograph from the acts of photoshopping
in the fashion industry?
 Do you feel that fashion shows need to be protected by some rights?
 What are the problems relating to acknowledgement of your claims while
signing a modelling contract?
 Do you feel that you should be recognised as a performer for your runaway
walk?

From fashion stylists:

 Do you feel that your work should be recognised as artistic work?

Page | 38
  Are you able to bargain or put forward your terms and conditions while
signing contracts?
 Do you feel you should get a separate right in your work which you don’t have
to share with others?
 Do you feel any problem with the identification of your claims to your work at
the time of signing of contracts?

From fashion experts:

 Do you feel the need to protect traditional art works or techniques applied on
dresses?
 Do you feel that Geographical Indications such as Banarasi Sari is enough to
protect such works applied on clothing?
 Do you feel the need to copyright fashion shows?
 Do you feel that models should be given copyright in their own photographs?
 Do you feel that Intellectual property claims of many artists is not recognised in
the Indian fashion industry?

This research is doctrinal and comparative legal research. The method of data
collection used for conducting this research is the interview technique. Simple random
sampling was chosen to select the sample for the purposes of conducting 157
interviews from different cities of India. For this study, simple random sampling is the
only possible method of sampling. This is because no importance was given to any
person for the interview.

Fashion designers, boutique owners, small unit owners, fashion models, fashion
stylists and fashion experts are closely associated with fashion designing. They are
major actors of fashion designing in the fashion industry, and therefore, were chosen
for the interview.

For the purposes of conducting this qualitative research, interview method was chosen
as the most appropriate method of eliciting responses from the targeted
respondents. Since the interviewees are dispersed at diverse geographical locations,
it was not conducive to choose the observation method. Questionnaires or
schedules are also

Page | 39
irrelevant as some of the interviewees are illiterate and uneducated. Therefore, the
most appropriate method chosen for data collection was the interview method. 157
Interviews were conducted through face-to-face interaction as well as over telephone.
Several rounds of structured interviews with open-ended questions were conducted
over a period of time to understand and record responses for identifying similar and
divergent views on the topic. Interviews were read and examined several times to
identify the ideas, thoughts and perceptions of each respondent that helped answer
the research questions.

157 samples include the designers (30), boutique owners (30), small unit owners (30),
models (30), fashion stylists (30) and fashion experts (7). 30 persons were selected
from each category. Moreover, 7 persons were interviewed as fashion experts. The
interviewees were chosen from different locations viz. Delhi (60), Mumbai (41), Kolkata
(30), Agra (15) and Chennai (11). The experts were chosen from Intellectual
Property Cell, National Institute of Fashion Technology (NIFT), Chennai and NIFT,
Delhi. They belong to the same institute but different branches. Rest of the experts
that were chosen are heads of their respective modelling agencies located in Delhi and
Mumbai. These heads run the agencies and are unknown to each other.

Delhi was chosen because it is the top 10 fashion capital of the world. It holds upto 6
fashion weeks every year and is home to 50 leading fashion designers. Mumbai is
chosen because it is an important centre of fashion designing and manufacture in
India. Best shows by top designers are hosted in Mumbai. It is home to many styling
companies. Kolkata is chosen because of its proximity with creation of fashion
designs. It is ‘Mecca of fashion’ and a ‘city of joy’ as it is a hub for artists. Chennai is
chosen because it organizes some of the premier fashion weeks where models
showcase extraordinary artistry of renowned designers from entire South India. Agra
is chosen because it contributes to 5% of total domestic demand for footwear in India
and 28% of India’s overall footwear export. Agra produces shoes worth Rs. 470 crores
annually for mass fashion.

Analysis of the qualitative interview data has followed the guidelines of Lincoln and
Guba (1985). It involved a categorising process of sorting units of data into provisional
categories based on “look-alike” characteristics. This was followed by analysis of

Page | 40
interview data. Interviews were transcribed, read, and examined several times, to
highlight the key phrases. The goal in selecting these phrases was to identify recurring
thoughts, ideas and perceptions of each respondent that helped answer the
research questions. Related thoughts of each respondent’s conversation were then
identified and divided into segments. After several iterations through the data, each
of these segments groups was organised into different categories.

1.10 Significance and Utility of the Study

The thesis adds to the existing body of literature by:

1. Highlighting the limitations in application of IP laws to Indian fashion industry from

a multi-stakeholder’s perspective.

2. Analysing the applicability of IP laws to ‘fashion clothing and accessories’ as a

different subject-matter.

3. Suggesting incorporation of certain aspects of European IP regime to meet the

demands of Indian fashion industry.

4. Providing an Indian perspective to the body of existing literature.

1.11 Scope and Limitation of the Study

The present study is focused on haute couture designers and big fashion companies
in a limited manner and only to the extent where the issues affecting them are similar
to issues affecting the designers who operate in the mass market. Moreover, the
sample is drawn from 157 designers, boutique owners, small unit owners, etc. from
the cities of New Delhi, Mumbai, Kolkata, Chennai, and Agra. The sample size is small.

So far as directions for future research is concerned, an empirical analysis may be

undertaken on the social norms and adequacy of law to fix the power imbalance in the
Indian fashion industry beyond contracts. Also, a doctrinal and non-doctrinal
research

Page | 41
may be undertaken on the need for a separate legislation to protect IPRs of fashion
industry.

1.12 Overview of chapters

The first chapter as discussed deals with the Introduction: IP protection in fashion
design and apparel, and dangers of potential knockoffs, Key issues and Trends.
In this, the researcher attempts to give an overview of Indian fashion industr y
highlighting its contribution to the Indian economy. It also includes the research
problem, scope and limitation, significance, research questions, hypothesis and
research methodology of the study. It deals with the relevance of IP for Indian fashion
industry and the problem of counterfeiting. It looks into the debate of relevance of IPRs
in the contemporary world with special reference to consumer perspective and its
implications for Indian fashion industry.

The Second chapter is the IP and Indian fashion: an analysis of legal framework.
In this chapter, endeavour is to outline the dynamics of Indian fashion industry and the
various stages of the fashion cycle with the IP issues arising therein. The chapter
investigates the problem of counterfeiting and knocking-off from the perspective of the
fashion designers. It discusses the problem of ‘inspirational referencing’ in respect of
fashion products which casts a big challenge for IP laws, in terms of, identification and
acknowledgment of IPRs of the designers. It explores the position of dual protection
of fashion works by copyright and design right. It discusses the challenges associated
with the sharing of IP rights amongst the various stakeholders whose intellectual
assets are not even recognized by the industry as well as by the law. It discusses
the challenges faced by Indian ethnic creations owing to flaws in IP laws such as
slow process of registration, etc.

The Third chapter is the data analysis. The chapter begins with an exploration of
various research methods in law, methods of data collection and sampling techniques.
It discusses the importance of interview technique for this research. It discusses the
rational for sample selection. It analyses the interview responses of various

Page | 42
stakeholders of fashion industry. This is done through thematic analysis. Lastly, it
summarizes the key findings of this research.

The fourth chapter is Copyright and Design Overlap in fashion: A comparative

analysis. In this chapter, the researcher focuses on the benefits of the French
copyright and design regime for the French fashion industry. It analyses the liberal
approach followed by French courts in interpretation of originality in respect of fashion
works. The study makes an in-depth analysis of advantages conferred upon French
fashion industry under the French IP regime and paralleled EU IP regime. This
includes benefits of unregistered community design right, Hague agreement, unity of
art principle under copyright and uncomplicated registration systems. It makes a
comparative analysis of judicial interpretation of ‘originality’ under both French and
Indian law in respect of fashion clothing and accessories. The study also includes
analysis of difficult subject-matter in IP and issue of copyright and design overlaps
as a major impediment in IPP for fashion creations.

The fifth chapter is Patenting of fashion design: A comparative analysis. In this,

deficiencies in patent law and the compatibility of the three tests of patentability with
fashion products is analysed. The study explains the judicial interpretation of the three
tests of patentability and their meaning in detail. It makes a comparative analysis
with French patent law and explores the legal challenges faced by the designers in
adopting patent law in the mass market.

The sixth chapter is fashion piracy and counterfeiting. The chapter focuses on
Trademark Act, 1999 and its limitations in protecting fashion products. It also presents
an analysis of the representations of retailers and distributors in trademark
infringement cases for fashion. It makes a comparative analysis of French trademark
law and the new challenges emerging from applicability of non-conventional
trademarks to fashion.

The seventh chapter is Ownership and licensing of IP rights in fashion. This

chapter analyses the issue of sharing of IP rights amongst the different creative artists
and designers within the industry. Attempt is made to emphasize on equality in
opportunity to incentivize one’s own intellectual creation through legal recognition of

Page | 43
one’s IPR. It analyses IPRs of creative artists in fashion shows and focuses on
comparison with French image rights. It makes an in-depth analysis of French legal
rights, their interpretation, as far as they pertain to fashion industry. It explores the
benefits of adopting such rights under Indian IP regime, which is still at nascent
stage when compared with the favourable developments in French IP law for
fashion.

The eighth chapter is Managing expressions of folklore for fashion design. The
chapter analyses the problem of cultural misappropriation in fashion industry with
judicial response in India and France. It analyses the deficiencies in the GI Act leading
to exclusion of several traditional art works into public domain and its impact on the
industry. Since TK or TCEs applied on fashion works do not get protection under
patent, trademark, or copyright law in the absence of any specific legislation to protect
TK or TCEs, the study, therefore, explores the compatibility of existing IP law to protect
TK or TCEs relevant for fashion in the present scenario.

The ninth chapter is the final chapter of the thesis which concludes how Indian IP
regime can develop and formulate its IP policy by incorporating benefits from IP laws
prevalent in France and EU. The researcher has tried to put forth suggestions after
making a comparative analysis of IP laws of India and France, its legislative and
judicial stance, in respect of fashion clothing and accessories. These suggestions
are in the nature of broad policy objectives or have been elaborated with detail. The
most appropriate approach is to harmonize the best examples available in the
advanced jurisdictions for the purposes of meeting Indian requirements.

Page | 44