Authored By: KUMARI SMRITI
INDORE INSTITUTE OF LAW
ABSTRACT
Fashion design holds a unique yet often overlooked place within India’s intellectual property laws. The major statutes—the Copyright Act of 1957, the Designs Act of 2000, and the Trade Marks Act of 1999—do not clearly or comprehensively protect fashion designs as an independent category. This article explores both the legal gaps and practical difficulties faced by courts and designers when current IP laws are applied to the fashion sector. Using legal analysis and international comparisons, the article addresses central questions such as what constitutes artistic originality, how to differentiate between functional and aesthetic features, and the consequences of requiring registration under the Designs Act. By analyzing court cases like Ritika Pvt. Ltd. v. Biba Apparels Pvt. Ltd. and Microfibres Inc. v. Girdhar & Co., it shows how existing legal protections are insufficient, leading to increased copying and limiting creative innovation. The article closes by advocating for legislative change, specifically the creation of a specialized legal framework for fashion design protection, drawing on international examples
Keywords: Fashion Design, Copyright Act 1957, Designs Act 2000, Intellectual Property, India, Artistic Work, Functional-Aesthetic Divide, Sui Generis Protection
INTRODUCTION
The global fashion industry, with an annual worth exceeding 1.7 trillion US dollars, fundamentally trades on creative innovation. In a complex market like India’s—which includes high fashion, traditional handlooms, craft-based embroidery, and large-scale apparel manufacturing—understanding legal safeguards for a designer’s original work is a pressing commercial concern, not just a theoretical exercise. As this article will show, the issue remains profoundly unsettled.
Within intellectual property law, fashion design occupies a uniquely problematic position. Copyright protection for books or music is well-established, but a clothing design, fabric print, or accessory is a hybrid: part artistic expression, part utilitarian object, and part market product. This threefold nature generates a core conflict. Copyright law aims to protect expression and traditionally excludes items with a primarily useful function. While the Designs Act could potentially address this void, its protection is short-term, requires formal registration, and is often insufficient for commercial needs. Consequently, a systemic weakness in the law exists, making Indian designers routinely susceptible to copying and commercial exploitation.
This article investigates a core question: Is the current Indian intellectual property system—specifically the Copyright Act of 1957, the Designs Act of 2000, and the Trade Marks Act of 1999—capable of providing sufficient and logical protection for original fashion designs? If it is not, what specific changes in the law are required to remedy these flaws?
The discussion unfolds in six main sections. After this introduction, Section II outlines the relevant concepts and legal structure, defining fashion design for legal purposes and explaining its place within current IP categories. Section III performs a detailed analysis of the three key laws, reviewing their written provisions, how courts have interpreted them, and their shortcomings. Section IV explores significant Indian and international case law in depth. Section V presents a critical evaluation of the law’s failures and pinpoints major areas needing improvement. Finally, Section VI summarizes the argument and proposes specific legislative changes.
Background and conceptual Framework
Defining Fashion Design as a legal object
Within the field of law, the term “fashion design” refers specifically to the visual and decorative aspects of items such as apparel, fabrics, shoes, and accessories. These elements are legally separated from functional components, which are not eligible for copyright due to their practical purpose. According to Section 2(d) of the Designs Act, 2000, a protectable “design” involves the visual characteristics—like shape, pattern, or color arrangement—applied to a product through manufacturing, provided these traits are judged exclusively by their visual appeal in the final item.
This legal requirement, however, presents an immediate conceptual problem: it demands that a design must appeal solely to sight. For fashion items, where visual appeal and practical function are often intertwined—such as in a garment’s silhouette or a textile’s structure—this standard becomes both theoretically and pragmatically difficult to apply.
The Copyright Act of 1957 offers an alternative framework. Under Section 2(c), an “artistic work” is defined to encompass not only traditional forms like paintings and sculptures but also extends to “any other work of artistic craftsmanship.” This latter category has generated considerable and ongoing debate in Indian and Commonwealth courts. Judges have consistently grappled with how to draw a clear, principled line between objects with genuine artistic value and those that are merely utilitarian.
The Statutory Landscape
Indian law provides three primary legal frameworks for safeguarding fashion designs. Under the Copyright Act of 1957 (updated in 2012), original artistic works are automatically protected for the creator’s lifetime plus sixty years, without requiring registration. Alternatively, the Designs Act of 2000 offers protection for a registered design for ten years initially, which can be renewed for a further five. While the Trade Marks Act of 1999 does not protect clothing designs directly, it can secure logos, brand names, and the overall visual identity, or “trade dress,” of a fashion label.
A pivotal—and often confused—legal overlap occurs between the Copyright and Designs Acts, specifically due to Section 15 of the Copyright Act. This clause removes copyright protection from any design that is either registered or eligible for registration under the Designs Act, provided it is reproduced on an industrial scale (defined as application to more than fifty items). This creates a fundamental drawback: by mass-producing their work, a designer loses the robust, automatic protection of copyright and must instead depend on the more limited, registration-based system of the Designs Act.
Existing Academic Analysis
Scholarly analysis of fashion design protection in India is still developing. Academics like Basheer and Kochupillai have highlighted the shortcomings of Section 15 of the Copyright Act and advocated for its amendment. The global discussion on this topic is more advanced. Notably, Raustiala and Sprigman’s “Piracy Paradox” theory contends that design copying can drive innovation by shortening a design’s lifecycle, thus fueling new trends. However, critics have effectively argued that this perspective does not translate well to markets outside the West, where counterfeit luxury goods inflict significant damage on brand reputation.
Legal analysis
Copyright Protection
The main challenge in securing copyright protection for fashion designs under the 1957 Copyright Act stems from how the law defines an “artistic work.” According to Section 2(c), such a work must have artistic merit that is separate from its practical purpose. Indian courts have traditionally interpreted the term “works of artistic craftsmanship”—a concept taken from the English Copyright Act of 1956—in a narrow way, guided by the pivotal House of Lords ruling in Hensher (George) Ltd. v. Restawile Upholstery (Lancs) Ltd.(1976).
This problem is worsened in India by Section 15(2) of the Copyright Act. This clause states that copyright in an artistic work is lost if the design is applied to more than fifty articles through an industrial process and could have been registered under the Designs Act. For commercial designers, the effect is severe: the very point a design becomes a commercial success through large-scale production is also the point its copyright protection ends.
The arbitrary limit of fifty articles in Section 15(2) seems to have been set without proper thought for industries like fashion, where even handcrafted items are often made in batches larger than fifty. This threshold clearly reflects a manufacturing economy of the 1950s and has no logical connection to how the fashion industry operates today. The number fifty has no factual justification, and the law contains no mechanism to update this figure as markets evolve.
Protection under the Designs Act, 2000
While the Designs Act of 2000 replaced the 1911 Act and aimed to modernize design protection, it has significant shortcomings for fashion. For a design to be protected under Section 2(d), it must be new, original, unpublished in India, and not solely functional. Registration grants the owner the right to act against piracy under Section 22.
However, the Act has critical flaws. First, it mandates registration, unlike copyright which arises automatically upon creation. A designer who reveals or sells a collection before registering its designs forfeits the right to register them, as Section 4(b) prohibits registering previously published designs. Given the fast pace of fashion seasons and the early disclosure of designs via lookbooks, shows, and social media, meeting this timing requirement is extremely difficult.
Second, the term of protection—ten years, with a possible five-year extension—is too short for timeless design elements that form a designer’s aesthetic identity over many decades. Copyright, by comparison, lasts for the author’s lifetime plus sixty years.
Third, Section 19 of the Designs Act permits anyone to seek cancellation of a registered design on grounds such as prior publication. This relative ease of cancellation creates business uncertainty, as competitors can strategically challenge registrations to remove protective barriers.
Trade Mark Law and Trade Dress Protection
The Trade Marks Act of 1999 provides an indirect form of protection through “trade dress,” which covers a product’s overall visual identity, including its shape and packaging. Section 2(1)(zb) defines a trademark to include shapes and colour combinations. In theory, a distinctive fashion design element that has gained public recognition through long use could be registered as a three-dimensional trademark.Nevertheless, trademark protection for fashion faces inherent limits. The functionality doctrine, recognized in Indian law, prevents registration of shapes or features that are technically necessary or that give the goods their essential value. Many aesthetic aspects of clothing, like a specific silhouette, could be seen as adding such value and thus be ineligible. Moreover, trademarks protect features that identify a product’s source, not creative expression itself. A design element not recognized by consumers as a brand identifier will not qualify.
The Functional-Aesthetic Divide: A Structural Weakness
A common, unresolved issue underpins all three legal frameworks: separating function from aesthetics. Intellectual property law generally seeks to protect expression and brand identity while leaving functional elements freely available. Fashion design fundamentally challenges this division, as a garment is both a creative expression and a utilitarian object. When courts must classify fashion designs, they face the difficult—and often conceptually impossible—task of disentangling “artistic” from “functional” aspects.
This legal inadequacy is especially apparent for textile designs and surface patterns, which are among the most valuable assets in fashion. A unique block-print or embroidery motif on fabric has obvious artistic character. Yet, if applied industrially to garments for sale, Section 15 of the Copyright Act removes its copyright protection, pushing it into the weaker Designs Act system where registration may not even exist.
Judicial Decision
- Ritika Pvt. Ltd. v. Biba Apparels Pvt. Ltd.[1]
Facts of the Case
Ritika Pvt. Ltd., a fashion design company, created kurta and salwar designs with special embroidery patterns and textile prints. The company alleged that Biba Apparels copied these designs and sold similar garments in the market. Ritika claimed protection under the Copyright Act, 1957 by arguing that the designs were artistic works. However, the defendant argued that the designs were used on clothing produced on a large scale and therefore copyright protection could not continue under Section 15(2) of the Copyright Act.
Relevance
This case shows the relationship between copyright law and design law in the fashion industry. It highlights that when a design is applied to more than fifty industrial articles, copyright protection ends and the designer must rely on registration under design law. The case is important because it demonstrates the legal difficulty faced by fashion designers in protecting their designs in India.
- Microfibres Inc. v. Girdhar & Co[2].
Facts of the Case
Microfibres Inc., an American textile company, created original artistic designs that were printed on upholstery fabrics. The company claimed copyright protection over these designs. An Indian company reproduced similar textile patterns and sold them in India. The defendant argued that the designs were capable of registration under design law and therefore copyright protection should not apply.
Relevance
This case is important because the court clarified that an original artistic work can still receive copyright protection even if it is later used in industrial products. The decision distinguished between the original artwork and the design applied to a product, providing some protection to designers who create artistic textile patterns.
- 3. Bharat Glass Tube Ltd. v. Gopal Glass Works Ltd.[3]
Facts of the Case
The dispute involved the validity of a registered glass design under the Designs Act. The issue before the court was whether the design was new and original or whether it had already been disclosed to the public before registration. The defendant argued that the design lacked novelty because it had already been published earlier.
Relevance
The case is significant because the Supreme Court clarified the strict requirement of novelty under the Designs Act, 2000. It established that a design must be new and must not be publicly disclosed before registration. This principle is important for the fashion industry because fashion designs are often publicly displayed before registration, making it difficult to obtain design protection.
Conclusion
This article has shown that the current Indian intellectual property system fails to offer sufficient or consistent protection for original fashion designs. The Copyright Act of 1957, via Section 15, effectively removes copyright protection from commercially viable designs upon their industrial application. The Designs Act, 2000, though officially relevant to fashion designs, is weakened by its necessity for registration, stringent novelty criteria, and insufficient duration. Trademark law offers merely ancillary protection for source-identifying elements and cannot replace a regime tailored specifically for designs.
The judicial precedents, notably the decisions from the Delhi High Court in Ritika v. Biba Apparels and Microfibres v. Girdhar, demonstrate that Indian courts have not managed to close these gaps solely through interpretive ingenuity. Although Microfibres provides some relief via the substratum doctrine, it fails to address the core structural deficiencies of the legislative framework.
Three particular legislative changes are proposed. Initially, Section 15(2) of the Copyright Act must be revised to increase the industrial application limit from fifty to five hundred articles and to establish a transitional period where copyright protection remains in effect until design registration is finalized. Secondly, the Designs Act must be revised to implement an unregistered design right that provides automatic protection for three years starting from the date of initial public disclosure. Third, India ought to contemplate the implementation of a sui generis Fashion Design Protection Act, based on comparative insights from the EU, which offers specialized protection for fashion designs as a unique type of intellectual property, including provisions adapted to the seasonal and commercial dynamics of the fashion sector.
In the absence of these reforms, Indian fashion designers — especially within the handloom, artisanal, and emerging sectors — will keep encountering the irony that as a design gains more commercial success, it receives diminished legal protection.
REFERNCE(S):
A. Statutes
Copyright Act, 1957 (Act 14 of 1957) (India), as amended by the Copyright (Amendment) Act, 2012.
Designs Act, 2000 (Act 16 of 2000) (India).
Designs Act, 1911 (Act 2 of 1911) (India) (repealed).
Trade Marks Act, 1999 (Act 47 of 1999) (India).
Trade Marks Act, 1958 (India) (repealed).
UK Registered Designs Act, 1949, as amended by the Intellectual Property Act, 2014.
Council Regulation (EC) No. 6/2002 of 12 December 2001 on Community Designs [2002] OJ L3/1.
Copyright, Designs and Patents Act, 1988 (UK).
B. Cases
Bharat Glass Tube Ltd. v. Gopal Glass Works Ltd., AIR 2008 SC 2520.
Christian Louboutin SAS v. Abubaker & Ors., (2018) 75 PTC 1 (Delhi High Court).
Hensher (George) Ltd. v. Restawile Upholstery (Lancs) Ltd. [1976] AC 64 (House of Lords).
ICC Development (International) v. Arvee Enterprises, 2003 (26) PTC 245 (Delhi High Court).
M/s. Crocs Inc. USA v. Liberty Shoes Ltd. & Ors., CS(COMM) 572/2018 (Delhi High Court).
Microfibres Inc. v. Girdhar & Co., 2009 (40) PTC 519 (Delhi High Court, Division Bench).
Microfibres Inc. v. Girdhar & Co., 2006 (32) PTC 157 (Delhi High Court, Single Bench).
Ritika Pvt. Ltd. v. Biba Apparels Pvt. Ltd., 2006 (33) PTC 519 (Delhi High Court).
Samsonite Corporation v. Vijay Sales, 1998 (18) PTC 147 (Delhi High Court).
Walter Lorenz Surgical GmbH v. National Medical Devices, 2016 (68) PTC 311 (Delhi High
BOOKS
Basheer S, ‘India’s Tryst with “Traditional Knowledge” and the Designs Act’ in Ghosh S (ed), Intellectual Property in the Global Arena (Cambridge University Press, 2013).
Cornish W, Llewelyn D and Aplin T, Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights (9th edn, Sweet & Maxwell, 2019).
Colette Fauveau, EU Design Law (Sweet & Maxwell, 2021).
Kochupillai M, ‘Indian IP Law and Policy’ in Torremans P (ed), Intellectual Property Law (8th edn, Oxford University Press, 2019).
Narayanan P, Intellectual Property Law (3rd edn, Eastern Law House, 2001).
JOURNALS
Basheer S and Kochupillai M, ‘The Copyright-Designs Interface in India’ (2011) 16 Journal of Intellectual Property Rights 409.
Fromer J, ‘Claiming Intellectual Property’ (2012) 76 University of Chicago Law Review 719.
Gupta R, ‘Copyright and Design in India: Resolving the Interface’ (2010) 52 Journal of Intellectual Property Law and Practice 289.
Lemley M, ‘The Economics of Improvement in Intellectual Property Law’ (1997) 75 Texas Law Review 989.
[1] Ritika Pvt. Ltd. v. Biba Apparels Pvt. Ltd., 2006 (33) PTC 519 (Delhi High Court).
[2] Microfibres Inc. v. Girdhar & Co., 2006 (32) PTC 157 (Delhi High Court, Single Bench
[3] Bharat Glass Tube Ltd. v. Gopal Glass Works Ltd., AIR 2008 SC 2520.
