Stolen Threads: Indian Fashion Western Runways and the Limits of Intellectual Property Law

Abstract

The international fashion industry has long used Indian textile arts, styles, and clothing without giving credit or compensation. The dupatta has appeared as a “Scandinavian scarf” on the runways of the West. The Kolhapuri sandal has appeared as high-fashion wear. The block-print fabrics from Rajasthan have appeared in the supply chains of fast-fashion retailers. The pattern is clear: Indian cultural arts and styles are helping Western businesses grow and expand, while the artists and communities who have created these styles over time are not recognised or rewarded.

In this essay, I explore whether intellectual property law, particularly what is available under UK law and similar international law, is an answer to this problem. The answer is: not really. The issue of cultural appropriation in the context of Indian arts and styles is not easily resolved under standard intellectual property law. The answer may lie in some of the more specialised aspects of intellectual property law, but these are not yet codified.

Introduction

The concept of cultural appropriation serves as an intellectual boundary, defining the contested and often indistinct line between influence and extraction, as well as homage and misappropriation. This boundary is most frequently and casually transgressed in the global fashion industry’s engagement with Indian craft traditions.

For example, when Stella McCartney presented a collection featuring intricately embroidered shawls laid in the manner of a South Asian dupatta, the fashion press celebrated the ‘bohemian elegance’ of the silhouette, yet the term ‘dupatta’ was absent from the show notes. Similarly, when Isabel Marant introduced flat leather sandals with hand-tooled geometric detailing closely resembling the Kolhapuri chappal — a craft tradition based in the Kolhapur district of Maharashtra with a heritage spanning several centuries — the collection was described as embodying a ‘global artisan aesthetic,’ with no mention of Kolhapur.¹ These are not isolated incidents or mere editorial oversights. Rather, they reflect a structural phenomenon: the aesthetic vocabulary of Indian fashion is routinely absorbed into Western commercial design, stripped of its cultural geography, rebranded with European authority, and sold at price points unattainable for the original. The issues at stake go beyond cultural considerations, though they persist significantly. Fundamentally, these are legal questions that the current framework is not equipped to address. Specifically, when fashion borrows without attribution, does this constitute a legal violation? When a multi-billion-pound industry profits from design traditions developed over centuries by communities that receive no benefit, is there a legal remedy? If existing intellectual property law is inadequate, what alternative mechanisms should be considered?

This essay considers these questions through the framework of UK and international intellectual property law. The principal legal regimes — copyright, design rights, trade marks, geographical indications, and the emerging doctrine of traditional cultural expressions — are each evaluated in relation to the uncredited appropriation of Indian fashion heritage. The analysis is at the intersection of intellectual property law and cultural studies, combining legal analysis, case studies from Indian craft traditions, and an examination of what is lacking in the system, culminating in recommendations.

Background

The Phenomenon of Fashion Borrowing

Fashion has always borrowed. The history of Western fashion is inextricably linked to trade, colonialism, and cross-cultural contact. Indian textiles, muslin, chintz, cashmere and more, revolutionised fashion in the seventeenth and eighteenth centuries in Europe, which in turn led to industrialisation and the deliberate deindustrialisation of Indian weaving communities by colonial powers.² The contemporary phenomenon of Western fashion drawing on Indian aesthetics is therefore not new in kind. What is new is the context: a global intellectual property regime, established in its modern form after Indian independence, which purports to protect creative labour regardless of national origin. That such a regime permits the ongoing uncredited appropriation of Indian design traditions is therefore a legal problem, not simply a historical grievance.

The distinction that matters here is between borrowing with attribution and appropriation without credit. Fashion scholars have long recognised that style circulates globally and that cultural cross-pollination is constitutive of fashion creativity.³ Nobody seriously argues that designers should be prohibited from drawing on Indian aesthetics. The objection is narrower and more specific: the extraction of such elements from their cultural context in a manner that erases the originating community, transfers economic value to Western intermediaries, and forecloses the originating tradition’s claim to a share of the resulting commercial benefit. Susan Scafidi’s definition captures the problem well: ‘cultural product taken from a minority culture by members of the dominant culture without permission, compensation, or credit’.⁴ It is that last element, the absence of credit, which proves hardest for existing law to address.

The Intellectual Property Framework

In the UK, there are various potential instruments, but none are suitable. Copyright under the Copyright, Designs, and Patents Act 1988⁵ is only applicable to original creative expression but is constitutionally unsuitable for communal knowledge that has been developed over time without an identifiable individual creator. Design rights under the Registered Designs Act 1949⁶ apply to the design of individual items but require novelty and individual authorship, both of which are unsuitable for traditional craft knowledge. Trademark law under the Trade Marks Act 1994⁷ applies to commercial marks, but there is no mechanism for protecting cultural heritage. All these laws were created to address different issues.

At the international level, the Agreement on Trade-Related Aspects of Intellectual Property Rights (‘TRIPS’)⁸ establishes minimum IP standards that WTO members, including both the UK and India, are obliged to observe. Article 22 of TRIPS provides for geographical indications, identifiers that link a product’s qualities or reputation to a specific place of origin, and this mechanism has the most direct relevance to Indian craft traditions, as discussed below. WIPO, meanwhile, has spent over two decades through its Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (‘IGC’) attempting to negotiate binding instruments for the protection of traditional cultural expressions (‘TCEs’).⁹ The negotiations continue. Agreement is still elusive. In the interim, the protection gap persists.

Legal Analysis

The Failure of Copyright

Copyright’s foundational requirement of individual authorship is simply incompatible with traditional Indian craft forms. The CDPA 1988 vests copyright in the ‘author’ of a work,¹⁰ understood as the person who creates it. But the kantha embroidery of Bengal, the bandhani tie-dye of Gujarat, and the ikat weaving of Telangana are not authored works. They are the collective creative labour of people over time, the knowledge they have accumulated. There is no author to be found. The copyright system, based on the individual creative person, has no place for this.

Even where a specific artisan produces a specific contemporary work, copyright protection is time-limited to the life of the author plus seventy years.¹¹ Craft forms that have existed for centuries are long in the public domain, available to anyone with the capital and distribution capacity to exploit them. The law treats the dupatta’s pleating conventions, the Kolhapuri’s tooling patterns, and the block-printer’s floral vocabulary as a commons to which all have equal access. Formally, this is impartial. Substantively, it is not. Equal access does not yield equal benefit when one party has a global supply chain and a Paris address, while the other operates from a workshop in rural Maharashtra.

The originality doctrine, as developed by the Court of Justice of the European Union in Infopaq International A/S v Danske Dagblades Forening¹² and retained in UK law post-Brexit, requires that a work reflect the ‘author’s own intellectual creation’. Applied to traditional craft, this standard can only be satisfied in relation to specific contemporary expressions of a traditional form, the individual Kolhapuri chappal made this week by a named artisan in Kolhapur, not the tradition itself. A Western designer who draws on that tradition without copying any particular contemporary piece infringes nothing. The law has nothing to say.

The Inadequacy of Design Rights

UK Unregistered Design Right under Part III of the CDPA¹³ protects original aspects of the shape or configuration of articles, but requires the design to be original in the specific sense that it is not commonplace in the relevant design field at the time of its creation. A craft form that has been practised across a region for centuries is, by definition, commonplace within its design field. Unregistered Design Right offers nothing here.

The Registered Designs regime¹⁴ offers no more than that. Registration demands novelty; the design must not have been made available to the public before the application date, and traditional designs, whose public existence pre-dates any conceivable filing by decades or centuries, cannot satisfy that requirement. The ‘informed user’ test, borrowed from EU jurisprudence and retained post-Brexit, is designed to compare registered designs with later competing designs. It was never intended as a mechanism for protecting unregistered traditional forms from commercial exploitation.

The most promising existing instrument within the IP framework is the Geographical Indications system. A GI identifies a product as originating in a specific territory and links its qualities or reputation to that origin. India has developed an extensive domestic GI regime under the Geographical Indications of Goods (Registration and Protection) Act 1999,¹⁵ and a significant number of Indian craft products have been registered, including Darjeeling tea, Kancheepuram silk, the Kolhapuri chappal, the Banarasi sari, and Channapatna toys. After the UK’s exit from the EU, the UK has established its own scheme for GI through the Agriculture Act 2020¹⁶ and the regulations that follow. However, the problem is that Indian GI products are not automatically accorded protection in the UK market after Brexit. Recognition of GI between the two countries is not complete. A Western fashion brand that markets a product as a ‘Kolhapuri-style sandal’ may not infringe any UK GI protection at all, depending on whether the designation is used in a manner that constitutes evocation instead of direct appropriation of the protected name.

Trademarks and Passing Off

As such, the law of trademarks safeguards registered trademarks, and passing off safeguards unregistered goodwill from misrepresentation.¹⁷ Neither of these bodies of law concerns cultural heritage. If a fashion brand uses the word ‘dupatta’ descriptively rather than as part of their brand name, they are unlikely to be infringing any registered trademark. Passing off involves misrepresentation of trade origin, and if the Western fashion brand makes no reference to India in the context of the dupatta-style item, on the face of it, there is no misrepresentation at all, simply appropriation.

There is a deeper difficulty here too. Trademark law is designed to protect the commercial interests of individual traders. It was not built to protect the cultural interests of communities. Collective marks, permitted under section 49 of the Trade Marks Act 1994,¹⁸ are theoretically available, but the costs of international registration and enforcement are prohibitive for artisan communities operating outside formal commercial structures. The asymmetry of legal access merely compounds the asymmetry of economic power.

Three Craft Traditions

i) The Dupatta and the Appropriated Shawl

The dupatta is essentially a textile piece measuring between 2 and 2.5 meters in length and is used to cover the chest or the head and shoulders. The heritage of the dupatta includes the Indian subcontinent. The differences among the various dupattas lie in the fabric used, embroidery technique, borders, and the way they are draped. When Western fashion labels use “oversized scarves,” “artisan wraps,” and “heritage stoles” that are similar in dimension and draping and feature an embroidered border similar to the dupatta, this practice could be referred to as “aesthetic extraction.” The visual logic and way the dupatta is used have been transplanted into the Western commercial arena, devoid of its nomenclature, heritage, and artisans.

The position is clear: the dupatta as such is not protectable under any existing UK intellectual property law. The regional variants of the dupatta, such as the Punjabi “phulkari” and the Banarasi dupatta with its characteristic brocaded silk, are not protected under UK law.¹⁹ The use by a Western label of the “aesthetic conventions” associated with the phulkari, without reference to Punjab or its makers, is not a violation of any law. What it is is the appropriation of the symbolic capital of a tradition signified by words such as “handmade,” “artisan,” and “heritage,” which are not earned but unacknowledged by the communities from whose cultural heritage this capital is appropriated.

ii) The Kolhapuri Chappal and High Fashion Sandals

Kolhapuri chappal is a flat leather sandal originating in Kolhapur and Sangli districts of Maharashtra. The craft is made using a specific method, including vegetable-tanned leather, stitching, and geometric tooling, techniques that have been used by artisan communities, mainly the Chamar and Khatik, for centuries. The Kolhapuri chappal was accorded Geographical Indication status in 2019,²⁰ enabling it to be linked with its region of origin in terms of its identity.

European and American fashion labels have marketed leather sandals bearing a striking resemblance to the Kolhapuri at price points between ten and forty times the price commanded by the authentic in Indian markets, without reference to Kolhapur, Maharashtra, or any of the artisan communities responsible for the form’s development. Does the Indian GI, or any UK equivalent, provide a remedy? At present, the answer is no, and for reasons that explain precisely why the GI system alone cannot solve this problem. The Indian GI does not automatically extend to the UK market. Even within India, GI protection prohibits the misleading use of the geographical name but does not prevent reproduction of the design form itself. And the design of the Kolhapuri, its flat sole, its characteristic toe loop, its tooled geometric surface, cannot be protected as a registered design in the UK, given the absence of novelty.²¹ The artisan communities of Kolhapur have no cause of action.

iii) Block-Printed Textiles and Fast Fashion Supply Chains

Rajasthani block printing encompasses various traditions, such as dabu mud-resist printing from Akola, bagru printing from the villages around Jaipur, and the white-ground floral prints from Sanganer. Each of these traditions represents a body of craft knowledge held by specific communities of artisans, whose skills are complex and economically significant. Fast-fashion retailers have incorporated block-print aesthetics, characteristic floral vocabularies, irregular repeat patterns that signal hand production, and earthy pigment palettes into machine-printed textile lines, marketed under descriptors such as ‘artisan-inspired’ or ‘handcrafted aesthetic’. The inverted commas around those descriptors are deliberate.

The legal exposure of this practice to copyright, design right, or GI claims is minimal. The block-print patterns, as traditional forms, sit in the public domain. Where an individual artisan produces a specific contemporary composition, copyright may subsist in that particular work, but the artisan would need to demonstrate that the fast-fashion retailer had access to and copied that specific work, a practically very difficult burden to discharge. The wider aesthetic vocabulary of Rajasthani block-printing, which is what the fast-fashion industry is actually appropriating, falls entirely outside the scope of protection. The law sees nothing to protect.

Critical Analysis

This analysis discloses an overall failure in the law that is not accidental but rather systematic. Intellectual property law is intended to protect individual, identifiable, novel, and time-bound acts of individual creation, such as those of authors, inventors, or designers. Indian fashion heritage is not individual, identifiable, novel, or time-bound, but rather communal in character, anonymous in terms of historical authorship, ancient in age, and alive in tradition. Thus, the incongruity between the law and the subject matter is substantial.

This is not an oversight. The international IP framework, consolidated through TRIPS, reflects the priorities of its principal architects: the United States, the European Union, and Japan. The protection of traditional knowledge and traditional cultural expressions was not a priority of those negotiations; it was, if anything, actively resisted, since robust TCE protection would have constrained the very freedom to appropriate that Western industries had historically exercised.²² The post-colonial dimension of this history deserves to be named clearly. The legal architecture that enables the uncredited appropriation of Indian fashion heritage was formed by precisely the power asymmetries it now perpetuates.

The costs operate at several levels simultaneously. The economic impact is seen in the transfer of economic value from Indian artisan communities to Western brands. The artisan, who sells his Kolhapuri chappal at four hundred rupees, subsidises a fashion brand that claims inspiration for its products at two hundred pounds. The cultural impact is seen in the loss of importance of traditional craftsmanship, which is reduced to an aesthetic vocabulary available only to those who can afford it, rather than to those who practice it. The legal impact is seen in its normalising effect, implying that no change is needed.

It is worth considering whether such an intervention is the appropriate measure in this regard. It has been argued that the regulation of attribution should be guided by industry ethics rather than legal prescriptions, promoting voluntary disclosure schemes, consumerist activism, and brand responsibility.²³ This argument acknowledges the law’s inability to serve as a precise tool in such matters and the challenges inherent in clearly defining the boundaries of cultural influence. Voluntary measures have been an option for the fashion industry for a long time, with no notable results. In fact, the designers of the Kolhapuri chappal do not receive any credit, nor is the legacy of the dupatta acknowledged on the runways of the West.

Conclusion

The present intellectual property regime in the UK is not enough to protect Indian fashion heritage from Western appropriation without recognition. The requirement of individual authorship under copyright law, novelty under design law, the focus on commercial identifiers in trademark law, and the partial protection offered under geographical indications are all insufficient. The legal system that governs the international fashion industry was not created with the protection of community traditional knowledge in mind, and the communities least able to access that system are the ones most affected by uncredited appropriation. The reason for this is not accidental.

Three reforms deserve serious attention. First, the UK should, as a matter of priority, establish a bilateral GI recognition agreement with India, ensuring that GI-protected Indian craft products, including the Kolhapuri chappal, the Banarasi sari, and Darjeeling fabrics, receive equivalent protection in UK markets to that available under Indian domestic law. This is technically achievable and commercially proportionate; it requires political will more than legal invention. Second, the UK should engage constructively with the WIPO IGC process and consider domestic legislation recognising traditional cultural expressions as a sui generis category of protectable subject matter, vesting communal rights in identified artisan communities and requiring licensing or attribution for commercial use. Third, the UK fashion industry should adopt, under regulatory encouragement, if not outright legal compulsion, a mandatory cultural provenance disclosure regime: brands that draw on identifiable cultural traditions in their design would be required to name those traditions in their marketing materials and supply chain documentation.

Fashion will continue to borrow from other cultures. This is what fashion does. This is what fashion is. And if managed honestly, it is what fashion gives. It is not what it does when it is borrowed, stolen, removed from context, or removed from attribution. It is not what it does when it is the dupatta that is now the ‘heritage wrap’, or the Kolhapuri that is now the ‘artisan-inspired footwear’, or the centuries of Indian intellectual property that is now being melded into the Western commercial look without attribution. It is time that the law stopped tolerating this. It is time that the law recognised that the source of beauty is not a burden. It is, at the very least, an honesty. And honesty, it seems, is something that intellectual property law is perfectly capable of requiring.

Reference(S):

¹  See generally Kavitha Cardoza, ‘When High Fashion Borrows From Indian Culture’ (NPR, 2019); Shivam Vij, ‘Who Gets Credit When the West Borrows From Indian Fashion?’ Quartz India (2019).

²  Prasannan Parthasarathi, Why Europe Grew Rich and Asia Did Not: Global Economic Divergence, 1600–1850 (Cambridge University Press 2011) ch 2; Giorgio Riello, Cotton: The Fabric that Made the Modern World (Cambridge University Press 2013).

³  Caroline Evans, Fashion at the Edge: Spectacle, Modernity and Deathliness (Yale University Press 2003); Christopher Breward, The Culture of Fashion (Manchester University Press 1995).

⁴  Susan Scafidi, Who Owns Culture? Appropriation and Authenticity in American Law (Rutgers University Press 2005) 9.

⁵  Copyright, Designs and Patents Act 1988.

⁶  Registered Designs Act 1949, as amended by the Registered Designs Regulations 2001 (SI 2001/3949).

⁷  Trade Marks Act 1994.

⁸  Agreement on Trade-Related Aspects of Intellectual Property Rights (adopted 15 April 1994, entered into force 1 January 1995) 1869 UNTS 299 (TRIPS Agreement), art 22.

⁹  WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, established by WIPO General Assembly, 26th Session (September 2000). For the most recent draft text on traditional cultural expressions see WIPO Doc WIPO/GRTKF/IC/47/4 (2024).

¹⁰  Copyright, Designs and Patents Act 1988, s 9(1).

¹¹  Copyright, Designs and Patents Act 1988, s 12(1).

¹²  Case C-5/08 Infopaq International A/S v Danske Dagblades Forening [2009] ECR I-6569; retained in UK law post-Brexit: see Tronixen Ltd v John Lewis plc [2023] EWHC 2467 (IPEC).

¹³  Copyright, Designs and Patents Act 1988, s 213(4).

¹⁴  Registered Designs Act 1949, s 1B(5), as amended by the Registered Designs Regulations 2001 (SI 2001/3949).

¹⁵  Geographical Indications of Goods (Registration and Protection) Act 1999 (India).

¹⁶  Agriculture Act 2020; Geographical Indications (Use and Protection) (Amendment etc) (EU Exit) Regulations 2019 (SI 2019/865).

¹⁷  Reckitt & Colman Products Ltd v Borden Inc [1990] 1 WLR 491 (HL) (establishing the classical trinity of goodwill, misrepresentation, and damage for passing off).

¹⁸  Trade Marks Act 1994, s 49.

¹⁹  For discussion of the phulkari tradition and its legal unprotectedness, see Amarjit Singh Narang, ‘Protecting Traditional Textile Crafts: The Case of Phulkari’ (2018) 23 Journal of Intellectual Property Rights 45.

²⁰  Geographical Indications Registry of India, Certificate of Registration No 457, Kolhapuri Chappal (Registered 2019).

²¹  Registered Designs Act 1949, s 1B(5). On the novelty bar as applied to traditional designs see also PMS International Group plc v Magmatic Ltd [2016] UKSC 12.

²²  Madhavi Sunder, From Goods to a Good Life: Intellectual Property and Global Justice (Yale University Press 2012) ch 3; Peter Drahos and John Braithwaite, Information Feudalism: Who Owns the Knowledge Economy? (Earthscan 2002).

²³  See Kal Raustiala and Christopher Sprigman, ‘The Piracy Paradox: Innovation and Intellectual Property in Fashion Design’ (2006) 92 Virginia Law Review 1687, arguing for restraint in IP protection on the basis of fashion’s self-regulating creative cycle.