Can Exclusivity Be Recognised As A Protectable Legal Right In Fashion And Luxury Law

ABSTRACT

What makes a luxury bag worth ten thousand euros? Not the leather. Not the stitching. The answer lies in something the law has never learned to hold, exclusivity. This paper asks whether the intangible architecture of desire, scarcity, and prestige should be recognised as an independent legal interest in fashion and luxury law. Through a doctrinal and comparative analysis of Indian and European Union frameworks, examining the Trade Marks Act 1999, the Competition Act 2002, the TRIPS Agreement 1994, and the landmark judgments in Coty Germany GmbH v Parfümerie Akzente GmbH, Copad SA v Christian Dior Couture SA[1], and Christian Louboutin SAS v Eizo Collection Co Ltd, the paper identifies three structural gaps in existing legal protection. It further interrogates the grey areas that complicate any straightforward recognition, manufactured scarcity, definitional instability, and the inequality implications of legally entrenching prestige. The paper recommends a conditional, registration-based framework for protecting the prestige interest, one that balances brand investment against consumer welfare, artisan rights, and competitive market access. It concludes that exclusivity is not merely an outcome of intellectual property and contractual rights. It is something the law has seen, circled, acknowledged in courtrooms from Luxembourg to Tokyo, and never claimed.

Keywords- Prestige Interest, Luxury Fashion Law, Intellectual Property Gap, Selective Distribution, Comparative Trademark Protection

1. INTRODUCTION

‘The Devil Wears Prada’, but does the law leave exclusivity undressed?

Suppose a luxury house spends a century building the idea that its bag is not for everyone. They deliberately limit supply, restrict distribution, and price out 99% of the world. That strategy, worth billions, is the most luxurious thing they own. Then a competitor copies not the bag, not the logo, not the design, but the entire architecture of being ‘unattainable’, same velvet rope, waiting list, and cultivated silence. The original house has no legal remedy, and this is where the concept of exclusivity emphasizes its demand.

Exclusivity in fashion law refers to the legal and commercial mechanisms through which fashion and luxury brands restrict access to products, designs, trademarks, distribution channels, collaborations, or consumer experiences in order to preserve scarcity, brand prestige, and market differentiation.

The law can protect logos, designs, and brand names; however, it cannot protect the feeling of rarity and prestige that makes those logos and designs worth protecting in the first place. Exclusivity is not a formally defined legal concept as a standalone doctrine; thus, it operates more as a commercial and legal principle than a codified definition. This leads us to the core research question, i.e., “Is exclusivity merely an outcome of intellectual property and contractual rights, or should it be recognized as an independent legal interest in fashion and luxury law?”

The legal basis for exclusivity is found in:

1. Trademark law– protecting brand identity and distinctiveness.
2. Design law– protecting unique aesthetic features.
3. Licensing agreements– granting exclusive rights to use trademarks or designs.
4. Distribution agreements– appointing exclusive distributors or retailers.
5. Competition law– limiting how far exclusivity arrangements may go.

Thus, exclusivity functions as a business strategy; therefore, a distinction is needed as many luxury brands treat exclusivity as their most valuable asset.

2. BACKGROUND AND CONCEPTUAL FRAMEWORK

India’s primary legal instrument for luxury brand protection is the Trade Marks Act 1999[2], which was enacted to align Indian trademark law with international obligations under the TRIPS Agreement and introduced service marks, collective marks, and enhanced protection for well-known trademarks. 

On selective distribution, selective distribution is a vertical agreement which falls under the umbrella of the Indian Competition Act 2002 and is valid so long as an appreciable adverse effect on competition is not caused.

So brands can legally restrict who sells their goods, but only up to a point, and with no luxury-specific protection equivalent to Europe’s Coty doctrine. India has no judicial recognition that protecting “luxury image” or “brand aura” is a legitimate aim that can justify restricting competition.

The Competition Act 2002[3] has no luxury goods carve-out. A brand in India cannot legally prevent its distributors from selling on Flipkart or Meesho the way European brands can ban Amazon under Coty.

The WTO’s TRIPS Agreement[4] It is an attempt to narrow the gaps in the way intellectual property rights are protected and enforced around the world, and to bring them under common international rules, establishing minimum standards of protection that each government has to give to the intellectual property held by nationals of fellow WTO members. Critically, Article 6 of TRIPS read with the Doha Declaration makes it clear that it is open for countries to determine the principle of exhaustion they want to follow, meaning TRIPS deliberately leaves the parallel imports.[5] question to each country. This is why India and the EU reach opposite results on the same issue.

3. LEGAL ANALYSIS

3.1 Why Exclusivity As A Distinct Legal Right Should Be Recognized

If a brand begins to sell women’s heels with a lacquered orange sole, not red as that of Christian Louboutin’s, no infringement is caused, as their protection is specifically for the lacquered red sole. However, if that very brand-

• Uses an orange sole specifically because coloured soles now signal luxury footwear
• Price their shoes at €900
• Limits production to 500 pairs
• Sells only through three boutiques globally
• Dresses only A-list celebrities
• Maintains a waiting list
• Creates the same feeling of exclusivity that Louboutin spent thirty years building, just in orange instead of red.

Legally, this brand is completely clean. They have copied not the trademark. They have copied the entire prestige architecture. The strategy. The system. The social meaning. The feeling of belonging to something rare. And Louboutin has no legal remedy for any of it. That is the gap. That is why exclusivity needs to be recognized as a distinct legal interest.[6]

ARGUMENT 1– Value Without Legal Recognition is Value without Protection

Current IP law protects the symbol of exclusivity but not the substance of it. A Birkin bag is worth tens of thousands of euros, not because the leather is that much better, but because owning one says something about who you are. Hermes was founded in 1837. Chanel has been curating its image for over a century. These brands did not become exclusive overnight; instead, they invested in craftspeople, in selective retail, in carefully chosen ambassadors, and in decades of saying no to mass production when it could have been more profitable in the short term.

Without any legal protection, a competitor can benefit from all that accumulated work without paying for it. They copy the vocabulary, the strategy, the aesthetic, and free-ride on the cultural infrastructure that luxury houses spent generations building. A right to exclusivity would legally recognize and protect that investment.

ARGUMENT 2- The Veblen Paradox

Luxury goods are Veblen goods.[7] Their desirability increases as their price increases. This inverts the normal logic of markets. In normal markets, lower prices mean higher demand. In luxury markets, lower prices destroy demand. The exclusivity premium is not a feature of luxury goods; it is the product itself. This creates a legal paradox that no existing IP doctrine addresses: the most commercially valuable aspect of a luxury good is the very thing IP law refuses to protect.

ARGUMENT 3- THE DUPE CULTURE

The rise of the “dupe” market shows a gap in current intellectual property law. Today, many brands sell products that clearly imitate the look and style of luxury items, but they avoid copying protected elements like logos or registered designs.  However, what they do copy is the overall aesthetic, the shape, style, and “luxury feel” that makes a product seem exclusive or high-end.  

3.2 Major Grey Areas

One key area is the distinction between natural scarcity and manufactured scarcity. Luxury brands often deliberately restrict supply to create desirability and maintain prestige. However, the law does not clearly address whether such artificially created exclusivity should be treated as a protectable interest or simply a business strategy.

Another significant ambiguity arises from the digital environment. With fashion increasingly marketed and consumed through online platforms, the traditional idea of exclusivity, based on controlled access and selective distribution, becomes difficult to sustain.

Additionally, there is uncertainty regarding the very definition of luxury and exclusivity across jurisdictions and cultures. What constitutes ‘luxury’ is not legally standardized and varies across markets, making it difficult to establish a consistent protective framework.

4. CASE LAW DISCUSSION

4.1 Christian Louboutin SAS v Eizo Collection Co Ltd[8]

Tokyo District Court | March 11 2022 | Upheld by IP High Court 2023

Facts

Christian Louboutin argued that Eizo’s use of red rubber soles on high heels, introduced in 2018, infringed on its brand identity, misled consumers, and diluted the exclusivity of its lacquered red soles, seeking damages of 42 million yen under Japan’s Unfair Competition Prevention Law.

Eizo countered that red was no more exclusive to Louboutin than cherry blossoms are to spring festivals, referencing the long history of red in Japanese footwear design, including traditional lacquered clogs.

What the Court Decided

The court ruled against Louboutin, stating the colour red is a common aesthetic enhancement, and women’s heels with red soles were widely distributed before the market entry of Louboutin, and that two decades of sales in Japan and advertising would be insufficient to find Louboutin’s red soles had played a role as the source in Japan.

Louboutin appealed to the IP High Court, which dismissed the appeal, and the brand has been engaged in a separate seven-year-long attempt to secure a trademark registration in Japan for its red sole.

Relevance- What the court was never asked: Did Eizo’s use of a red sole appropriate the prestige signal that Louboutin spent thirty years constructing globally? Did it free-ride on the cultural architecture, the red-sole-equals-luxury association that Louboutin’s investment created, without contributing to building it?

Eizo argued that Louboutin’s red colour is also one of the red colours sold by Pantone as a colour sample, commonly distributed in the market, and is not a special colour created by Louboutin nor a colour that can be used exclusively by it. That argument is legally correct under every existing framework. But it completely sidesteps the core question: even if red was never exclusively Louboutin’s in a purely chromatic sense, the meaning that attaches to a red sole on a luxury heel, the prestige signal, the cultural authority, the exclusivity architecture, was built by Louboutin alone. And that meaning has no legal owner anywhere in the world.

4.2 Coty Germany GmbH v Parfümerie Akzente GmbH[9]

Court of Justice of the European Union | Case C-230/16 | 6 December 2017

Facts

Coty Germany GmbH, a luxury cosmetics company, distributed its products through a selective distribution system designed to protect the luxury image and premium positioning of its brands. Under this system, authorised retailers are required to follow strict conditions that maintain the exclusivity and prestige of the products.

A dispute arose when Parfümerie Akzente, an authorised retailer, refused to accept a contractual clause that prohibited the sale of Coty products through third-party online platforms such as Amazon or eBay. Coty argued that such platforms could damage the luxury image of its products and therefore violate the terms of its distribution system.

The case was first heard by the German regional court, which rejected Coty’s claim. The court relied on earlier European case law (notably Pierre Fabre), which suggested that maintaining a prestigious brand image alone was not a sufficient justification to restrict competition under EU law. The decision was then appealed and referred to the European Court of Justice (ECJ) for clarification.

What The Court Decided

It held that luxury goods are entitled to special protection under competition law when it comes to preserving their image and exclusivity.

The Court ruled that selective distribution systems are legally permissible under Article 101 of the Treaty on the Functioning of the European Union (TFEU) if certain conditions are met.

These include:

• Retailers are chosen based on objective and qualitative criteria applied uniformly and without discrimination.
• The nature of the goods requires such a system to preserve their quality, image, and luxury character.
• The restrictions imposed must be proportionate and necessary to achieve this purpose.

Relevance- This judgment clarified that protecting the “luxury aura” of a brand can be a legitimate objective under EU competition law, thereby giving luxury brands legal support to maintain exclusivity through controlled distribution systems.

5. CRITICAL ANALYSIS/ FINDINGS

GAP  1- THE LAW PROTECTS THE LABEL, NOT WHAT MAKES THE LABEL VALUABLE

At the international level, Article 15 of the TRIPS Agreement 1994 provides the first comprehensive definition of what can constitute a trademark in international IP law, and Article 16 requires member states to grant trademark owners the exclusive right to prevent third parties from using identical or similar signs where such use would result in a likelihood of confusion. These are powerful protections, but they protect signs. A logo. A name. A registered mark. TRIPS says nothing about the prestige interest, the deliberate architecture of scarcity, the curated cultural authority, or the system of being desirable that gives those signs their commercial value.

In India, the position is identical in structure. Section 29(4) of the Trade Marks Act 1999[10] offers a remedy for dilution, allowing the owner of a well-known registered trademark to claim civil, criminal, and administrative remedies where a mark takes unfair advantage of or is detrimental to the distinctive character or reputation of the registered trademark. It still only protects the mark and its reputation, not the prestige interest that built that reputation. [11]

GAP 2- EVEN THE BEST PROTECTION IS A PERMISSION AND NOT A RIGHT

Even within the EU, where Coty offers the most advanced recognition of the prestige interest anywhere in the world, that recognition remains fundamentally incomplete.

What Coty gives a luxury brand is permission; you are allowed to restrict distribution in order to protect your luxury image.

What it does not give is a right; it does not say your luxury image is a legal asset you own, can register independently, can license on its own terms, or can actively assert against someone who copies your entire exclusivity architecture.

The TRIPS Agreement only covers certain aspects of intellectual property rights, and there are many matters that are not dealt with at all, and the prestige interest is precisely one of them.

Even India’s most expansive provision, Section 30(1) of the Trade Marks Act 1999[12], which limits trademark rights where use is in accordance with honest practices and is not detrimental to the distinctive character or repute of the mark, operates as a boundary on infringement, not as a freestanding recognition of prestige as an ownable interest.[13]

5.1 Solutions To Overcome The Issues

Solution 1: Recognizing Exclusivity as a Distinct Legal Interest

This would help address situations where brand value is harmed even without traditional infringement or dilution thresholds being met.[14]

Solution 2: Expanding the Scope of Trademark Dilution

Currently, dilution in India under Section 29(4) is limited to well-known marks and focuses mainly on reputation and distinctiveness. A more flexible interpretation could include aesthetic dilution and subtle brand weakening caused by non-confusing uses, especially in fashion contexts where visual identity is central.

Solution 3: Clarifying Standards for Well-Known Marks and Luxury Status

Finally, clearer and more consistent criteria for determining “well-known” trademark status and luxury recognition would reduce uncertainty in enforcement.

6. CONCLUSION

The central contention of this paper has not been that the law ignores luxury; it is that the law protects luxury incompletely, and that incompleteness is structural rather than incidental. Through the analysis of Coty, Copad, and Louboutin v Eizo, a consistent pattern emerges: courts acknowledge the prestige interest, accommodate it, and occasionally protect it, but invariably through borrowed instruments. A contract. A competition law exemption. A colour mark. Never through a right of its own. The Devil Wears Prada, but it is the law that is wearing Prada out. Every judicial recognition of luxury exclusivity arrives dressed in somebody else’s doctrine, borrowed, contingent, and removable. Prestige is perpetually the passenger, never the driver. This paper has demonstrated that exclusivity is not merely an outcome of intellectual property and contractual rights; it is an independent legal interest, commercially indispensable, and long overdue for its own seat at the table of protectable rights.

REFERENCE(S):

1. Case C-59/08 Copad SA v Christian Dior Couture SA ECLI:EU:C:2009:260 (Court of Justice of the European Union, First Chamber, 23 April 2009) https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62008CJ0059 accessed 7 June 2026.
2. Trade Marks Act 1999 (India), s 29 https://indiankanoon.org/doc/84096/ accessed 7 June 2026.
3. Competition Act 2002 (India), s 3(4) https://indiankanoon.org/doc/1153878/ accessed 7 June 2026.
4. Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) 1994, Annex 1C to the Marrakesh Agreement Establishing the World Trade Organization, signed 15 April 1994, entered into force 1 January 1995, arts 6, 15, 16 https://www.wto.org/english/docs_e/legal_e/trips_e.htm accessed 7 June 2026.
5. Kapil Wadhwa & Ors v Samsung Electronics Co Ltd & Anr FAO(OS) 93/2012 (Delhi High Court, Division Bench, 3 October 2012) https://www.manupatrafast.in/NewsletterArchives/listing/Newslex%20DHLaw/2012/Resources_%20Newslex%20-%20November%202012%20-%20D.%20H.pdf accessed 7 June 2026.
6. Fashion Law Journal, ‘Exclusivity of Luxury Brands in Fashion Industry’ (Fashion Law Journal, 2022) https://fashionlawjournal.com/exclusivity-of-luxury-brands-in-fashion-industry/ accessed 7 June 2026.
7. Sheff JN, ‘Veblen Brands’ (2012) 96 Minnesota Law Review 769 https://ssrn.com/abstract=1798867 accessed 7 June 2026.
8. Christian Louboutin SAS v Eizo Collection Co Ltd (Tokyo District Court, 11 March 2022, upheld by IP High Court 2023).
9. Case C-230/16 Coty Germany GmbH v Parfümerie Akzente GmbH ECLI:EU:C:2017:941 (Court of Justice of the European Union, First Chamber, 6 December 2017) https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62016CJ0230 accessed 7 June 2026.
10. Trade Marks Act 1999 (India), s 29(4) https://indiankanoon.org/doc/84096/ accessed 7 June 2026.
11. Bird and Bird IP Team, ‘Round-Up of Fashion-Related IP Decisions in 2022’ (2023) 18(3) Journal of Intellectual Property Law and Practice 199 https://doi.org/10.1093/jiplp/jpad006 accessed 7 June 2026.
12. Trade Marks Act 1999 (India), s 30(1) https://indiankanoon.org/doc/1881111/ accessed 7 June 2026.
13. TRIPS Agreement 1994 (n 4) art 6; WTO, ‘Overview of the TRIPS Agreement’ (World Trade Organization) https://www.wto.org/english/tratop_e/trips_e/intel2_e.htm accessed 7 June 2026.
14. Sahni A and others, ‘The Role of Intangible Attributes of Luxury Brands for Signalling Status: A Systematic Literature Review’ (2022) Journal of Business Research https://www.researchgate.net/publication/362034884_The_role_of_intangible_attributes_of_luxury_brands_for_signalling_status_A_systematic_literature_review accessed 7 June 2026.

[1] Case C-59/08 Copad SA v Christian Dior Couture SA ECLI:EU:C:2009:260 (Court of Justice of the European Union, First Chamber, 23 April 2009) https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62008CJ0059 accessed 7 June 2026.

[2] Trade Marks Act 1999 (India), s 29.

[3] Competition Act 2002 (India), s 3(4) https://indiankanoon.org/doc/1153878/ accessed 7 June 2026.

[4] Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) 1994, Annex 1C to the Marrakesh Agreement Establishing the World Trade Organization, arts 15–16 https://www.wto.org/english/docs_e/legal_e/trips_e.htm accessed 7 June 2026.

[5] Kapil Wadhwa & Ors v Samsung Electronics Co Ltd & Anr FAO(OS) 93/2012 (Delhi High Court, Division Bench, 3 October 2012) https://www.manupatrafast.in/NewsletterArchives/listing/Newslex%20DHLaw/2012/Resources_%20Newslex%20-%20November%202012%20-%20D.%20H.pdf accessed 7 June 2026.

[6] Fashion Law Journal, ‘Exclusivity of Luxury Brands in Fashion Industry’ (Fashion Law Journal, 2022) https://fashionlawjournal.com/exclusivity-of-luxury-brands-in-fashion-industry/ accessed 7 June 2026.

[7] Jeremy N Sheff, ‘Veblen Brands’ (2012) 96 Minnesota Law Review 769 https://ssrn.com/abstract=1798867 accessed 7 June 2026.

[8] Christian Louboutin SAS v Eizo Collection Co Ltd (Tokyo District Court, 11 March 2022, upheld by IP High Court 2023).

[9] Case C-230/16 Coty Germany GmbH v Parfümerie Akzente GmbH ECLI:EU:C:2017:941 (Court of Justice of the European Union, First Chamber, 6 December 2017) https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62016CJ0230 accessed 7 June 2026.

[10] Trade Marks Act 1999 (India), s 29(4) https://indiankanoon.org/doc/84096/ accessed 7 June 2026.

[11] Bird and Bird IP Team, ‘Round-Up of Fashion-Related IP Decisions in 2022’ (2023) 18(3) Journal of Intellectual Property Law and Practice 199 https://doi.org/10.1093/jiplp/jpad006 accessed 7 June 2026.

[12] Trade Marks Act 1999 (India), s 30(1) https://indiankanoon.org/doc/1881111/ accessed 7 June 2026.

[13] TRIPS Agreement 1994 (n 2) art 6; WTO, ‘Overview of the TRIPS Agreement’ https://www.wto.org/english/tratop_e/trips_e/intel2_e.htm accessed 7 June 2026.

[14] Abhimanyu Sahni and others, ‘The Role of Intangible Attributes of Luxury Brands for Signalling Status: A Systematic Literature Review’ (2022) Journal of Business Research https://www.researchgate.net/publication/362034884_The_role_of_intangible_attributes_of_luxury_brands_for_signalling_status_A_systematic_literature_review accessed 7 June 2026.