Name: Sejal Choudhary

JGU ID: 18010351

Batch: B.A. LLB (Hons.) 2018
Section: B
Date of Submission: 18th October 2021
Word Count (excluding abstract): 3128 words

IPR & The Fashion Industry

Abstract

Intellectual Property Law embodies several rules and regulations that assist in
shielding and invoking legal rights to designs, creative ideas, and other artistic creations. The
broad ambit of this law applies to various types of creations that manifest originality. This
paper essentially focuses on the importance and applicability of IPR in the fashion industry.
IPR, in recent years, have played a role of paramount importance in the remarkable expansion
and prosperity of the highly competitive global fashion industry.

From Versace’s Medusa motif, Hérmes Birkins to Vera Wang’s wedding dresses and
Dr. Martens boots, bits, and pieces of IPR elements are embedded in almost every realm and
corner of this industry. The designs conceived by artists and designers that are recognized as
fashion are nothing but their intellectual creations. The laws in the domain of IPR protect the
creativity of these artists by giving them exclusive authority to reap benefits from their
creative outcomes and secures their work from exploitation and plagiarism. Hence, there is a
massive interaction between the fashion industry and IPR at various stages.

This paper will delve into the growing significance of IPR in the fashion industry. It
will essentially touch upon various applicable aspects and tools of IPR in this industry aided
by case laws to reflect the development of the particular element IPR in the industry. The
immensely growing applicability and development of IPR in the fashion arena over the past
few years will be demonstrated through the impact of various disputes and precedents.

IPR is the touchstone of the fashion business; this paper will also focus on the
strategic employment and management of IPR tools by fashion houses like Pickwick in order
to protect their creations, reduce risk of exploitation, and thrive among the businesses in the
fashion industry. The intricate correlation of fashion and IPR makes the former an
indispensable tool for a thriving fashion business house.

Lastly, this paper will also shed light on the growing importance and applicability of
IPR in the Indian fashion industry, along with a reflection of its development in the Indian
context over the years through precedents like the Sabyasachi and the Rohit Bahl case.

Sejal Choudhary 18010351

I. INTRODUCTION

“Fashion is not only limited to dresses. Fashion is in the sky, in the street, in ideas, in
the way we live and in what is happening around.” - Coco Chanel.

Gabrielle Chanel created some timeless classics with her collarless jacket and ‘little
black dress, which continues to thrive. However, Chanel and every other entrepreneur in the
fashion industry shared one thing in common - none of them enjoy substantial intellectual
property (IP) protection, specially designed to protect their work.1
 
Designers are present in every field of the industrial realm, and good designs are the
very backbone of a successful company. These individuals must possess artistic and creative
ability and blend it with practical application, which is relied on to convert abstract ideas into
actual designs. While there is no exact definition of fashion design, it is generally an art that
focuses on the creation of designs related to clothing apparel and accessories.2
 
The globally thriving fashion industry accounts for sales exceeding $750 billion
annually.3 Apart from being one of the largest creative industries, it also provides a self-
expressive stage for individuals to manifest identities while also allowing them to connect to
society.4 Fashion industry is the most booming yet most overlooked industry. One fragment
of its strikingly paradoxical behaviour is the role of IP laws in its domain. Under the current
legal regime, film, music, and literature industries are heavily shielded by IP laws; however,
their sales combined are lower than that of the fashion industry independently. 5 With billions
of dollars at stake, it is only imperative to deliberate over legal and economic protection of
this massively contributive industry.6

1
Elizabeth Ferrill & Tina Tanhehco, ‘Protecting the Material World: The Role of Design Patents in the Fashion
Industry’ (2011) 12 NC JL & Tech 251
2
Sade Parbhoo, ‘Designing Justice : A Critical Analysis of Intellectual Property Rights Within the Fashion
Industry’ (2016) UKN LJ https://researchspace.ukzn.ac.za/handle/10413/14137 last accessed 11 October 2021
3
Kal Raustiala & Christopher Sprigman, 'The Piracy and Paradox: Innovation and Intellectual Property in
Fashion Design' (2006) 92 VaL Rev 1687, 1693
4
Drishti Shah, ‘Fashion Faux Pas: The Law And Economics Behind The Copyright-Free Industry’ (2017) 3(1)
IJLILS 35
5
Ibid.
6
Ibid.

Sejal Choudhary 18010351

II. ROLE OF IPR IN THE FASHION INDUSTRY

a. Why is there a need for IP laws in the Fashion Industry?

The fashion industry heavily relies on the original creativity of its designers,
positioning them in a constant struggle to deliver new collections on time and also to ensure
that they are unique;7 therefore, it is only right to protect their hard-worked designs.
Moreover, a single design takes months of intricate curation, and one stolen design could
cause a fashion house to lose an entire season and millions of dollars.8
 
In this business domain, the primary competitive advantage of a fashion house is its
intellectual wealth embedded in its unique creations. Unfortunately, extremely permissive IP
laws in this sector give fast-fashion retailers like H&M and Zara an opportunity to
conveniently save time by skipping the creativity process and replicate similar, if not exact,
designs of debuted high-trending-apparel, which is promptly and at a cheaper price
introduced in the ever-changing fashion market.9 With mere IP rights in hand, the original
designers are rendered helpless against these expanding number of knockoffs, that pose a
severe threat to the industry.
 
IP rights are ownership rights granted to protect original creation and compositions.
They protects one's trademark, patented invention, copyright work, or design from being
exploited or employed by others without the owner's consent. 10 The dynamic fashion industry
is an IP-heavy sector that is constantly evolving and commercializing new ideas and trends;
and to better preserve and efficiently utilize such valuable intangible IPs, fashion designers
must be aware of the industry's IP protection demands and intellectually protect their
creations.11 

b. Relevance of IPR in the Fashion Industry/ How IPR protects the Fashion Industry?

Every new design is rooted in an idea, which cultivates through a creative process of
engagement, skill application, and labor to finally grow into the end-product and such
creativity deserves to be protected through a system of IPR;12 which is even more imperative
in the high-end fashion industry. 
 
Neglect in substantial IP protection can have a snowball effect leading to a mounting
production of counterfeits and knock-offs.13 Moreover, with the growing trend among people
of proving wealth not actually possessed, the counterfeit business is becoming colossal.
Counterfeits or ‘fakes’ are essentially theft of trademarks as it entails illegal mimicking of a
brand using its logo, name, and work to entice revenue.14
7
Natasha Rowena, ‘Fashion Copycats and Copyright Law’ (2020) 4(1) MS Rev 16
8
Olivia Hyde & Kishore G. Kulkarni, ‘Counterfeits and Intellectual Property Rights (IPR): the Fashion
Industry’ (2017) SCMS J IM 5
9
Shah (n 4).
10
Richa Bhandari, ‘IPR and The World of Fashion’ (Mondaq, 28 June 2021)
https://www.mondaq.com/india/trademark/1085142/ipr-and-the-world-of-fashion last accessed 8 October 2021
11
V. Filma, ‘IPR in Fashion Industry’ (Altacit Global, August 2015)
https://www.altacit.com/ipmanagement/ipr-in-fashion-industry/ last accessed 6 October 2021
12
Parbhoo (n 2).
13
Hyde & Kulkarni (n 8).
14
Rohan Gandhi, ‘Role of Intellectual Property in the Fashion Industry’ (Lex Forti, 5 July 2020)

Sejal Choudhary 18010351

 IP rights may also aid in developing industrial associations and enhance business
competitiveness in the fashion industry. It also serves understated functions such as endowing
fashion designers with an identity and helps the brand build off an image and reputation
through the IP tools.15 Gucci, one of the many fashion houses known to have an iconic logo
and patterns, has trademarked them to distinguish their brand from other similar brands.
Similarly, American Eagle has copyrighted its iconic eagle image, and Burberry copyright-
protected its iconic plaids print. 

c. IPR tools available for Fashion Designers and Houses:

Of the seven IPRs suggested by WTO’s TRIPS, the IP rights that are most relevant to
a fashion designer are - Copyright, Trademarks, and Design patents. 16 Designers seeking IP
protection for their designs would need to consider the provisions encompassed in Copyright
Act, the Designs Act, and the Trade Marks Act.17

Famous fashion houses employ their brand equity to develop a bond with their
consumers; thereby, they fiercely protect their brand names and logos through registered IP
tools like trademarks and secure designs associated with their products through other IP tools
like copyrights and design patents. An IPR owner enjoys the benefit of protecting their IP
even against ‘similar’ marks to the original work, with the intent of its unauthorized
exploitation.18 

i. Copyrights:

Copyright is an IPR subset that protects literary or artistic, theatrical, musical, and
creative expressions previously published.19 It is not the strongest IP ally for fashion designs
as it only protects originally composed work such as books, paintings, music, etc., leaving
'useful articles' with a functional purpose, such as garments, out of its ambit.20 

However, the case Star Athletica v. Varsity Brands introduced the separability-test

which held that fashion designs can also be copyright-protected if individual features of
creative design in an article are separable from its functional element, have artistic values
capable of being depicted in a pictorial or sculptural form, and can exist independently when
separated, such as prints on garments.21 Famous fashion designer Marc Jacobs was accused
of plagiarising artwork on a scarf by Swedish artist Gösta Olofsson. The creative element of
the design in the scarf i.e., Olofsson's original painting, could exist independently of the
scarf's functional purpose, thereby including it under the sphere of copyright

https://lexforti.com/legal-news/role-of-intellectual-property-in-the-fashion-industry/ last accessed 6 October

2021
15
Pankaj Kumar, ‘Fashion And Related Intellectual Property Rights Issues’ (Legal Thesis, IIS University 2019)
16
Nina Nurani, ‘The Implementation of TRIPs-WTO in the Protection of IPR over Fashion Trademark of
Creative Industry as an Effort to Improve Global Competitiveness’ (2014) 5(3) Int J TEF 285
17
Shah (n 4).
18
Bhandari (n 10).
19
Kumar (n 15).
20
Brandon Scruggs, 'Should Fashion Design Be Copyrightable' (2007) 6 Nw J Tech & Intell Prop 122
21
Ibid.

Sejal Choudhary 18010351

 protection.22 Although this separability test provides mere IP protection, it expands the realm
of copyright protection in the fashion industry.

The lines of this IP protection often get blurred in certain complicated situations while
deciphering what constitutes a 'useful article' vis-a-vis a protectable element. The panthers
and daisies on Givenchy t-shirts can be considered creative artworks independent from the
garment's functional purpose of covering a human body; yet, innumerable copies of them
exist. What about Balenciaga backpacks with an elaborately designed zipper? Are the zippers
'artistic' enough to be deemed independent from its functional purpose, or does the function–
to open and seal the bag–take precedence? Most courts opine that separability-test does not
apply to garments since its artistic expression is often inextricably linked to the garment's
utilitarian features.23 

The industry's dynamic environment is one reason why it lacks substantial copyright
protections. Although clothing is a useful article, it is imperative to improve the existing
copyright protections available to fashion designers; since their designs entail immense labor
and creativity and at least deserve proper IP protection.24

ii. Trademarks

Trademark is an IPR including a word, phrase, mark, or design that identifies the
original source of the article and distinguish genuine from counterfeit products.25 A
distinctive and original logo, print, or brand name can be trademarked and protected,
provided they are separable from and can independently exists of the article’s functional
element. For instance, Nike has three trademarks for its unique and original symbol
(the Nike swoosh), slogan (“just do it”), and name. In addition, the famous British fashion
house Burberry owns the trademark “Burberry,” and Louis Vuitton has trademarked its
unique logo “LV,” a distinct mark associated with its identity.26

In recent years, trademark law, under ‘trade dress’ has expanded its protection to
other visual appearance elements of a fashion product such as its color combination,
packaging, design, provided these elements are not functional and manifest the article’s
origin source. Trade dress protects features of certain fashion products of typically well-
known fashion houses such as the iconic Hermès' Birkin bag, Burberry's plaid print design,
and even Christian Louboutin’s red-colored sole in shoes. Although color by itself cannot be
protected, but since Louboutin’s red sole has become an iconic visual design feature that
customers associate with the source brand, it has been trademarked.27 

Trademark-infringement occurs when distinct mark of a company is used with the

intent to confuse consumers about the original source brand of the article. 28 For instance,
‘tiffany’ is a generic term for diamond placement, yet Costco was implicated for trademark
22
Filma (n 11).
23
Filma (n 11).
24
Rowena (n 7).
25
Simran, ‘Role of IPR in Fashion Industry’ (Lex Auxilium, 15 December 2020)
https://lexauxilium.com/2020/12/15/role-of-ipr-in-fashion-industry/ last accessed 10 October 2021
26
Erika Heikkinen, ‘Product IPR Analysis of LV Archlight Trainer by Louis Vuitton’ (Com. Law Thesis,
Hanken School of Economics 2020)
27
Rowena (n 7).
28
Pranjal Shirwaikar, ‘Fashion Copying and Design of the Law’ (2008) 14 J Int PR 113

Sejal Choudhary 18010351

 infringement by Tiffany & Co., for using the name ‘Tiffany’ in its product, as consumers
identify the name Tiffany with products originating from the brand Tiffany & Co. While some
may argue that original designs and knockoffs target different markets, which may not entail
substantial damage to the designer; it may not always be the case. Even Haute Couture brands
have taken designs from brands on the same fashion pyramid, and created some fairly similar
work. An example of such trademark-infringement has been demonstrated in the YSL v.
Louboutin case.

Brand names, apparel designs, logos, and other distinct iconic designs elements are
secured by being innately woven in the fabric of IP protection as customers broadly identify
source brands of fashion products by these distinctive, unique features. Fashion houses rely
extensively on their trademarks as they create a lasting brand impression and image on their
consumer’s minds.29 These fashion houses also strategically employ trademarks to build a
successful business in the fashion industry, an interesting example of which is the Italian
apparel company Pickwick, that once only had a trademark to itself now subcontracts the
manufacturing and generates massive revenue by controlling the use of its trademarked
logo.30

Furthermore, in the Vera v. Vera case, Vera Wang, a celebrated fashion designer filed
a lawsuit against the business relaunching Vera Neumann’s brand, owning the ‘Vera’
trademark.31 While Wang claimed that her new apparel line, frequently referred to as ‘Simply
Vera’ did not interfere with Neumann’s trademarks which has substantially been unused
since years, hence, must be cancelled. Neumann’s company countersued that the name
‘Simply Vera’ could impede the company’s effort of relaunching the brand. This trademark
dispute lawsuit could have demonstrated an interesting development of IP laws in the fashion
industry; however, both the companies amicably settled this trademark fight without
disclosing the terms of the agreement.32

iii. Patents

A patent is a legal document granting exclusive rights to the inventor of a novel, non-
obvious, and industrially applicable invention, technological innovation, fabric or material, or
design.33 Patents are not the immediate resort to seeking IP protection in the fashion industry
because substantial apparel designs are not literally 'new' in the novel and non-obvious sense
required to meet the standard of patentability. Moreover, they are generally deemed to have a
functional purpose, making their patentability unlikely. 
 
However, innovations integrated into articles make them patentable. A portfolio of
such patents may, for example, reflect technical inventions such as wrinkle-free free fabrics,
softer or more weather-resistant fabrics, technology in CROC shoes, UV-filtering materials,
etc., to name a few.34 Integrating gadgets into apparel in the current technological era makes
patents for new techniques of using novel devices an alternative. American designer Lauren
29
Alok Saxena, ‘Significance of Intellectual Property in the Fashion Industry’ (Lexology)
https://www.lexology.com/library/detail.aspx?g=3011b365-d004-402f-8a62-1a52265787b0 last accessed 5
October 2021
30
Scruggs (n 20).
31
Emily Fredrix, ‘Lawsuit pits Vera v. Vera’ The Spokesman-Review (Washington, 17 October 2007)
https://www.spokesman.com/stories/2007/oct/17/lawsuit-pits-vera-v-vera/ last accessed 11 October 2021
32
Ibid.
33
Ferrill & Tanhehco (n 1).

Sejal Choudhary 18010351

 Scott is presently integrating radio frequency identifier tags, earlier used to monitor freight
deliveries, into her kid's apparel line to further their safety.35
 
Novozymes, a Danish biotech company, developed and patented a technology based
on an enzyme 'cellulase' for the worn-look-like treatment of stone-washed denim
jeans.36 Today, this company pursues a worldwide pro-active licensing strategy of its
technology to maximize revenue from its IP assets. Italian company Grindi Srl invented and
patented an innovative and unique fabric made from cork, called Suberis, which used in
manufacturing various kinds of apparel.37 Buck Weimer and CSIRO successfully patented its
invention to control body temperature and odor in garments.38

iv. Design Patents/ Industrial Design

Historically it has mostly been quite challenging and expensive to get patent
protection in the fashion industry. However, an alternative of patent protection for design by
way of 'industrial design' also known as 'design patent' is the best fit for the fashion industry,
as they protect the look or ornamentation of an article's design, securing its visual
appearance, provided it is novel, non-functional and non-obvious to an ordinary designer of
in the art.39 

While fashion trends may come and go in a flash, some classic and iconic designs
never fade. The classic Chanel suit designed in the 1930s, for instance, is still sold today at a
whopping price. The iconic Kelly Bag at the French fashion house Hermes has a one-year
waiting period. Fashion houses that succeed in creating such timeless pieces must procure
appropriate IP protection for their design, such as design patent, in time to prevent
exploitation of their creativity by free-riders. This IP tool offers protection for certain non-
obvious and novel features of the article's design, impacting its visual appearance and not the
actual end-product.

Generally, design patents can easily protect three-dimensional designs such as a dress
or handbag as an Industrial Model. However, designs and creative patterns printed on fabrics
equipping it its visual appeal while lacking a three-dimensional feature can also be protected
as an Industrial Design; due to the amalgamation of images, patterns, or colors that are
incorporated in an article having a functional purpose for decorative reasons.40 The owner of
a registered design patent can prevent exploitation of its novel or unique ornamental or
aesthetic qualities which may relate to both - a three or two-dimensional feature.

34
Smriti Agarwal, ‘Effects of the New Technology Era on the Economic Growth of Textile and Fashion Market’
(2018) 3(4) TTE & FT 1
35
Saxena (n 29) and Sayali Diwadkar, ‘Role of IPR in the Fashion Industry’ (Mondaq, 24 May 2018)
https://www.mondaq.com/india/trademark/704378/role-of-ipr-in-the-fashion-industry last accessed 11 October
2021
36
Saxena (n 29).
37
Agarwal (n 34).
38
Agarwal (n 34).
39
Ferrill & Tanhehco (n 1).
40
Filma (n 11).

Sejal Choudhary 18010351

III. IPR AND THE INDIAN FASHION INDUSTRY

The Indian Fashion Market is booming, yet, it is well known that the Indian market is
flooded with counterfeits; a typical example is the famous Sarojini Nagar Market, where
knockoffs and counterfeits flood the market at much cheaper rates, making IP laws crucial for
the fashion Industry. The IPR laws in India offer protection to the fashion industry primarily
via three legislations, viz., the Designs Act, 2000, the Indian Copyright Act, 1957, and the
Trade Marks Act, 1999.41 

The Trademarks Act aims to protect brand names, logos, and designs distinguishable
to the particular brand. In the recent Sabyasachi lawsuit against a Delhi-based wedding attire
supplier, the retailer selling her clothing line using Sabyasachi's trademarked brand name was
sued for trademark infringement.42 The Copyright Act, 1957 and the Designs Act, 2000 both
offer protection of the creative elements of a fashion designer. While the latter protects the
decorative or aesthetic element of a product for visual appeal, known as industrial design; the
former secure creators of original compositions from the moment they are tangibly
produced.43 The Kolkata-based designer Sabyasachi's label holds the copyright on more than
700 of his designs.44

The case of Rajesh Masrani v. Tahiliani Design, expanded the definition of 'artistic
work' to include garments sketches and printed and embroidery patterns on the fabric and
accessories under Copyright Act.45 However, the biggest flaw of the Copyright Act can be
demonstrated in the case of Ritika Apparels v. BIBA, wherein the defendant accused of
plagiarising Ritu Kumar's designs walked out freely merely because of a technical loophole
in the provisions of the Design Act and Copyright Act containing an unreasonably low
production threshold;46 which was a clear case of quandary of two legislations, causing severe
damage to the fashion industry.

The court in Microfibres, Inc v. Girdhar held that setup of motifs, floral, leaves, and
patterns and their positioning would not be copyrightable for labor and expertise as they lack
the element of 'artistic work.'47 The Court's interpretation harmonized the Copyright and the
Designs Act in accordance with the legislative intent. Further, the case of People Tree v.
Christian Dior presents how commonly creative works of local artists like 'People Tree' are
conveniently stolen and replicated by fashion giants like Dior.48

IP protection laws exist in India's fashion industry, primitively encompassed in the

Copyright and Design Acts; their competency remains questionable and requires
modifications and elaboration pertaining to the diversity of this industry to truly cater to and
protect the originality and creativity of this industry designers. Moreover, the protection

41
Sameer Kumar Swarup & Sachin Rastogi, ‘Fashion Design and Intellectual Property Rights: An Indian
Perspective’ (2021) 26 J Int PR 127
42
Sohini Dey, ‘Sabyasachi Mukherjee Moves Against Plagiarism’ (Livemint, 4 May 2018)
https://www.livemint.com/Leisure/CxCGzKOKCuILcNIqcpZGTM/Sabyasachi-Mukherjee-moves-against-
plagiarism.html last accessed 12 October 2021
43
Saxena (n 29).
44
Dey (n 42).
45
Swarup & Rastogi (n 41).
46
Vishaka Agarwal, ‘IPR Registration in Fashion Industry of India’ (2019) 24 J Int PR 35
47
Saxena (n 29).
48
Agarwal, (n 46).

Sejal Choudhary 18010351

offered under these legislations appears to entice no inclination from the stakeholders of this
industry due to the provisional and procedural limitations. 

Albeit leading Indian fashion icons from Anju Modi, Rohit Bahl, Anita Dongre, and
others have started recognizing and employing IP tools to safeguard their creative work. 49
The budding landmark IPR case laws in the fashion domain might at the least pave a path for
substantial involvement of the legal fraternity in the unexplored realms of the fashion
industry. India still has a long way to offer an ideal and substantial IP-protected environment
to the fashion industry.

49
Devika Agarwal, ‘Fashion in IPR Mode’ Firstpost (India, 1 September 2017)
https://www.firstpost.com/business/fashion-in-ipr-mode-rohit-bal-anju-modi-anita-dongre-copyright-designs-
as-plagiarism-spreads-3996807.html last accessed 13 October 2021

Sejal Choudhary 18010351

IV. FINDINGS & CONCLUSION

The fashion business is one of the most revenue-generating industries of any country.
With billions invested in curating new designs, IP protection becomes an indispensable and
crucial industry element. Unfortunately, IP laws are failing in fashion, which is also the
fundamental reason for the vulnerability of fashion designs. Consequently, many lawsuits are
routinely seen being filed by fashion houses for unauthorized use of their designs.
 
Although the registration of IP could entail an expensive, cumbersome and
challenging process, it must be manifested to protect the original creative output of a
designer's hard work from being exploited and provide it security in the future. Lack of IPR
leading to counterfeits not only dilutes a brand's image but also takes away from the profits of
a business eventually from the local economy by circumventing several taxes and duties;
impacting both the business as well as the country.50 So, a country must deliberate and
strengthen its IP protections to lessen likelihood of losses, if not completely eradicate
counterfeiting, by adequately protect the rights of an artist. 
 
Some countries have better tailored IP laws for protecting a fashion industry; some
make no efforts to prevent the piracy of artists' original work. While one would generally
think of a country with a significant fashion industry to be better protected, it is not entirely
true. For example, Italy, the world's fashion hub, shares a common trait of its fashion industry
with Hong Kong, a country known for its counterfeit business - both lack proper enforcement
of substantial IP laws in fashion designs.51 At the same time, countries in European Union
and the UK offer a Design Act for protecting unregistered designs, Indian mandates their
protection under its Design Act.52 On a concluding note, the birth of an idea points towards a
unique feature which must be intellectually protected to avoid its exploitation.

50
Hyde & Kulkarni (n 8).
51
ibid.
52
Kyoung Kim Yee, Lee Keun, Park Walter G and Choo Kineung ‘Appropriate Intellectual Property Protection
And Economic Growth In Countries At Different Levels Of Development’ (2012) 17 J Int PR 82

Sejal Choudhary 18010351