Authored By: Unnati Dixit
Arya Kanya Degree College (aff. University of Allahabad)
ABSTRACT
India’s oldest traditional civilization lies in its handlooms across the world. India’s ancient hand-spun Khadi, the spinning wheel technique and the fine muslins of ancient Dhaka to the traditional gold-threaded brocades of Varanasi silk, carries an ancient cultural practice and communal identity. Fashion law has grown significantly over time with broadened culture and different regional practices into a legal discipline and developed as a globally increasing cultural aesthetic. The question is, how Fashion law, in India’s traditional textile heritage protected under international intellectual property law. This paper Employing a Doctrinal Research Methodology, examines the implementation of the TRIPS Agreement,1994, in Indian domestic system with central finding in the current framework portraying, Geographical Indication of Good (Registration and Protection) Act,1999, Designs Act,2000, Copyright Act,1957 and Consumer Protection Act.
KEYWORDS: TRIPS, traditional knowledge, fashion law, GI Act 1999, Designs Act 2000, Indian textiles, cultural misappropriation, Banarasi silk, Pashmina
INTRODUCTION
India is the oldest and continuous textile civilization globally. As the archaeological evidence from the Indus Valley sites of Mohenjo-Daro and Harappa indicates the cotton cultivation since that of the 3000BCE. (Irwin & hall, 1971)[1] following cultures that never stopped. India’s variety of different regions bring together the most extraordinary cloth like: The Kanjeevaram silk of Tamil Nadu, designed with motifs and glinting Zari work, Banarsi brocades of Varanasi that portrays the Mughal era aesthetics and most importantly the Khadi inspired by Mahatma Gandhi that became a political philosophy. This diverse range across different cultural fabrics indicate the community identity, cultural memory and regional tradition.
The problem is that when a global fashion brand lifts a traditional seasonal culture it differentiates at the intersection of culture, commerce, art and economy bringing the legal tools weaker for intellectual property frameworks. This is how; TRIPS was adopted and had variants.
India became a member of the World Trade Organization in 1955 and adapted the TRIPS Agreement through domestic legislations like: The Trade Marks Act, 1999, The Designs Acts, 2000, amended as Copyright Act, The Patent Act (amended in 2005) and at present, The Geographical Indication of Goods (Registration and Protection) Act, 1999.
TRIPS was designed around individual inventors, corporate right holders and fixed authorship. This pattern had no relevance to the Indian community-based knowledge that never incorporated a legal entity capability of rights. Therefore, this paper questions about TRIPS framework as implemented in India through its domestic legislation, does protect textile heritage against commercial misappropriation while enabling Indian fashion globally? The analysis herein suggests the answer, not yet.
BACKGROUND AND CONCEPTUAL FRAMEWORK
- India as powerhouse of textile industry.
India at present is the world’s second-largest textile exporter, contributing approximately 13% of country’s total export earnings (Ministry of Textile, Government of India, 2023)[2]. Each of the major textile represent a system of various communities and geographical regions specific techniques of thread preparation, dyeing processes, pattern coding and loom construction across generations.
Among them, Khadi’s significance, regulated under the Khadi and Village Industries Commission Act, 1956, functions as a brand of National identity as a fabric category. Other fabrics like Kanjeevaram or Kanchipuram silk distinguishes the use of mulberry silk thread, gold Zari borders and temple motifs reflecting South Indian architecture. Banarsi silk has gained the most significance as it carries five centuries of Mughal influence. In recent years, these textiles have entered global fashion discourse. The integration of Indian motifs and weaving techniques into high fashion reflects both opportunity as commercial value and vulnerability as it lacks legal machinery to prevent imitations.
- The TRIPS Agreement: an overview
One of the foundational agreements of the World Trade Organization system was The Agreement on Trade-Related Aspects of Intellectual Property Rights negotiated as a part of Uruguay Round of trade talks and entered into force in 1995.
The provisions of this agreement relate with that of the traditional textile like,
Article 22-24 that states Geographical Indications (GIs), which defines the indications that identify a good as originating in territory, region or locality where a given quality, reputation or other characteristics of the goods is attributable to its geographical origin. Article 25 provide protection for independently created industrial designs that are new or original. Article 26 sets the scope of design protection and its minimum rights. Article 27 states the patentable subject matter and Article 39 states the protection of undisclosed information, including the trade.
- Implementation in India
India implemented the TRIPS through various legislations enacted with the passing years. Firstly, the Trade Marks Act, 1999, that brought Indian trademark law into existence through TRIPS. The Designs Act, 2000, that implemented framework for the protection of industrial design protection. Another is the Copyright Act, 1957 that states the protection for several works, it was amended several times extending its scope. Lastly, the Geographical Indication of Goods (Registration and Protection) Act, 1999 [GI Act], was a new legislation in India for the textile industries.
What lacks in India’s domestic law implementation is that there is no particular law for the traditional and cultural textile designs that hold importance in the textile industries.
LEGAL ANALYSIS
- Geographical Indications
The GI Act, 1999 is the most direct implementation of the TRIPS, Article 22-24, making it India’s most important legal tool for textile industries protection. The Act states the registration of geographical indications in aspect of goods that originate from a defined geographical area and does possess some quality or attribution to that origin. It prevents outside users from using the authorized goods. Kanjeevaram silk was registered as GI No.4 in textile industry for the first time including other like Banarsi brocades and sarees, Kashmir Pashmina, Kullu shawl, Muga silk of Assam, Lucknow chikankari and many other across the country. However, GI protection has certain limitation that is its use as primary tool to protect just the origin and not the content. It just displays the origin not the person who made it. The lack of enforcement of GI agency is another setback, marking a gap between formal existence of legal rights and the actual capacity to enforce them.
- The Design Act 2000 and the design protection under TRIPS
Article 25 of TRIPS states that member state provide protection for independently created industrial designs that are new or original. India implemented this through the Design Act, 2000, that allows registration for all the designs which are new or original and not disclose prior publicly. Nonetheless for traditional textiles this brings in a setback as traditional textiles by designs are not new but are carried forward with generations. The very ancient designs can’t be claimed as it is tagged under “prior art”. There is no protection to such ancient designs resulting the copying of such traditional designs.
- Traditional Textile and Copyright
Copyright Act, 1957, prevents the copyright for any artistic work. Section 13 of this Act grants copyright in original work to their authors only. Section 22 provides for a specific term use for lifetime patent protection. But the authorship itself is an obstacle. Copyright requires an identifiable human author. Traditional textiles are generally community created passed down from generations, with no single author or any “creation” author. This effect in context of the traditional textiles lags behind.
- The Contradictions
The gap between the formal legal protection and its practical enforcement is a genuine crisis for the most of the Indian traditional textiles. The most prominent be the fake Kanjeevaram sarees present is a parallel problem. Synthetic material blended sarees are tagged as Kanjeevaram silk due to the absence of mandatory labelling and enforcement. The major setback is prominent as many brands states “inspired by” and copy the actual textile without any attribution mainly because lag in the domestic law.
- Missing link between TRIPS and Tradition
The most significant missing link is the very prominent no provision for the traditional knowledge protection. India is an active developing legal instrument on traditional knowledge and cultural expression within the World Intellectual Property Organization. Similarly, many other provisions must be laid down for the lack of traditional knowledge insignificance.
CASE LAW DISCUSSION
- Microfibers Inc. v Girdhar & Co. & Anr.[3]
This is one of the most relevant judicial decisions that indicated the interface between fabric designs and copyright.
Microfibers, a United States company, manufactured upholstery fabric featuring original artistic designs and alleged that Girdhar & Co. had copied those particular designs onto their own fabric production.
The court examined the Section 15(2) of the Copyright Act, 1957, along with the Designs Act. It held that where a design is applied to an article industrially, meaning reproduced more than fifty times, the copyright underlying artistic work ceases under Section 15(2). This judgment drew a clear distinction between the artistic work in its real or original form and the designs as applied operation of Section 15(2).
The principle established in Microfibers is deeply problematic for traditional textiles protection. Applied to any traditional weaving patterns, the Section 15(2) means that any pattern applied to more than fifteen times is stripped of its copyright. For traditional fabrics the fabrics has been woven a hundred times across centuries, this is a fact. The case therefore, confirms judicially what the statutory text impels that is that the traditional textile designs fall entirely outside the scope of the copyright protection in India, regardless of its cultural ancient significance.
- Burberry Limited v Designers Imports, Inc.[4]
The Burberry check, a camel, black, white and red tartan pattern first used as a lining in 1920, has been protected through a combination of trademark registration, design registration and passing of actions in multiple jurisdictions. Burberry has successfully gained its litigation against the counterfeiters in the United Kingdom, European Un ion and internationally registered and unregistered rights.
The critical point of comparison is not that Burberry’s check is more culturally significant than a Pochampally ikat pattern, but that the Burberry has access to multiple overlapping legal instruments, all of which recognizes individual corporation and ownership and that it possesses the intuitional capacity to enforce those instruments globally. Indian artisans’ community have access to a single primary instrument that is the GI, which recognizes collective community origin but not individual ownership, and these lack the institutional capacity for sustainable enforcement. The asymmetry is purely structural.
CRITICAL ANALYSIS AND FINDINGS
The analysis presented is a set of structural and functional failures in the TRIPS- based framework as applied to India’s traditional textile heritage.
The first and foremost fundamental problem is the colonial design framework of TRIPS. The Agreement was negotiated at a moment when the intellectual property systems of developed countries, built over the eighteenth and nineteenth centuries around the individualist and industrial assumptions of the patent and copyright tradition, were being projected globally as universal standards. The categories they embody like the individual inventor, the single author, the fixed and novel creation, the temporally bounded right are not universal. They are historically specific products of particular economic and legal cultures. Communal creative traditions, in which knowledge is held and transmitted collectively across generations, in which design evolves through continuous community practice rather than discrete acts of invention, and in which the “owner” of knowledge is the community itself rather than any individual, does not map onto these.
The effect of TRIPS implementation is therefore not merely that certain legal tools fail to protect certain products but it is that an entire mode of creative production is systematically excluded from legal recognition. The more a design has been refined and preserved across generations, the more securely it falls into the public domain. India’s own heritage thus operates as prior art that forecloses protection. Meanwhile, a global fashion brand can take that public domain heritage, apply minimal styling modifications, and register the result as a new industrial design. The traditional producer is excluded from protection and the appropriator gains it. The absence of dedicated GI courts, fast-track enforcement mechanisms, or mandatory product certification at point of sale means that even well-registered Gls such as Pashmina operate more as aspirational labels than as effective legal shields.
Historically, TRIPS-plus provisions have traded to extend protection for Western-style industrial IP, such as extended copyright terms and expanded patentability, while providing little or nothing for traditional knowledge or geographical indications. Most importantly, no current legal framework in India adequately addresses the use of traditional cultural heritage training data of AI-generated outputs that are substantively derived from that heritage. This is not a distant future problem rather it is happening now, and the absence of a legal response is the setback.
CONCLUSION
This paper set out to ask whether the TRIPS framework, as implemented in India, adequately protects traditional textile heritage against commercial misappropriation while enabling Indian fashion to compete globally. The answer, on the evidence examined, is that it does not. India’s implementation of TRIPS has produced a legal framework that provides partial and structurally limited protection through geographical indications, while leaving fundamental gaps in design protection, copyright, and traditional knowledge that commercial actors, both domestic and international, routinely exploit.
The key findings of this analysis can be summarized as follows. GI protection under the GI Act, 1999, is India’s most effective tool for traditional textile protection, but it protects origin labels, not creative content, and its value severely limited by inadequate enforcement infrastructure. Design protection under the Designs Act, 2000, is structurally inapplicable to traditional designs because the novelty requirement cannot be satisfied by any design with a multigenerational history. Copyright protection under the Copyright Act, 1957, is defeated by the communal authorship problem. And TRIPS itself contain no provision for traditional knowledge protection, leaving the most fundamental dimension of the problem entirely unaddressed at the international level.
To conclude, India’s textile heritage is one of the great cultural achievements of human civilization. It deserves a legal framework that treats it as such.
REFERENCE(S):
Microfibres Inc. v. Girdhar & Co. & Anr. 2006 (32) PTC 157 (Del).
Burberry Ltd. v. Designers Guild Ltd. [2000] 1 WLR 2416 (UK House of Lords).
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[1] Irwin, J., & Hall, M. (1971). Indian painted and printed fabrics. Victoria and Albert Museum.
[2] Ministry of Textiles, Government of India. (2023). Annual report 2022–23. Government of India Press.
[3] Microfibres Inc. v. Girdhar & Co. & Anr. 2006 (32) PTC 157 (Del).
[4] Burberry Ltd. v. Designers Guild Ltd. [2000] 1 WLR 2416 (UK House of Lords).
