Authored By: Himani Kumari
Parul University
ABSTRACT
The increasing integration of Indian traditional cultural expressions into global luxury fashion has generated significant world-wide legal debate regarding cultural adoption, recognition, and protection of cultural heritage. Recent examples involving luxury fashion brands drawing inspiration from traditional Indian designs, craftsmanship and cultural symbols have shown possible gaps in the current intellectual property laws. This paper examines whether intellectual property and geographical indication laws sufficiently protect Indian traditional cultural talents from commercial exploitation by luxury fashion brands. This paper follows a doctrinal and analytical research methodology, to study and analyse relevant provisions of Indian intellectual property law, the Geographical Indications of Goods (Registration and Protection) Act, 1999, and international legal Frameworks, including the TRIPS Agreement. It is submitted that although these legal mechanisms offer certain forms of protection, they remain insufficient in addressing issues of collective ownership, attribution and equitable benefit-sharing. The article ends with a reminder to develop a more holistic legal framework to better protect traditional cultural heritage in today’s fashion industry.
INTRODUCTION
The global fashion industry increasingly draws inspiration from diverse cultural traditions, transforming local artistic expressions into commercially valuable fashion products.[1] While cultural exchange has long influenced fashion design, the involvement of traditional cultural expressions into luxury fashion has generated significant legal and ethical concerns.[2] In last few years, several luxury fashion brands have been criticised for utilising elements associated with Indian cultural heritage, including traditional footwear, embroidery techniques, jewellery designs and cultural motifs, without providing proper credits and recognition.[3] These controversies have initiated debates regarding the distinction between creative inspiration and cultural appropriation, particularly within the framework of intellectual property law.[4]
The legal importance of this issue lies in the limited protection provided to traditional cultural products under existing intellectual property laws.[5] Unlike conventional intellectual property, traditional cultural expressions are often collectively developed, transmitted across generations and embedded within community identity.[6] Consequently, they do not easily satisfy the requirements of copyright, trademark or design protection.[7] Although geographical indication law offers a degree of protection for certain culturally significant products, its scope remains limited and its effectiveness in addressing commercial appropriation by global fashion houses remains contested.[8]
As a result, the following research topic is addressed in this article: Are present laws related to GI and IP sufficient to prevent luxury fashion firms from profiting from traditional cultural manifestations in India? The research reviews the legal framework controlling traditional cultural manifestations in India and under international law using a doctrinal and analytical technique. It also examines if present legal procedures properly preserve cultural traditions in the modern luxury fashion sector, assesses key judicial developments, and evaluates the constraints of present protections. The paper concludes by suggesting changes that will improve the safeguarding of traditional cultural manifestations while preserving a suitable balance between cultural interchange and legal duty.
Background and Conceptual Framework
Traditional cultural expressions (TCEs) refer to artistic, cultural and creativity that originates from and are maintained by a particular community over generations.[9] These symbols may include traditional textiles, embroidery techniques, jewellery designs, motifs, handicrafts, folklore and other forms of cultural heritage.[10] Unlike conventional intellectual property, which is generally attributed to identifiable individuals or legal entities, TCEs are collectively created and maintained by communities. Consequently, they often fall outside the scope of traditional intellectual property protection mechanisms.[11]
The increasing use of cultural elements by luxury fashion brands has given rise to debates concerning cultural appropriation and creative inspiration.[12] While creative inspiration involves the legitimate adaptation of cultural influences, cultural appropriation generally refers to the commercial use of cultural expressions without meaningful attribution, authorisation or benefit-sharing with the originating community.[13] The distinction between these concepts remains legally uncertain, as most intellectual property regimes do not specifically regulate the use of traditional cultural heritage.[14]
In India, the protection of traditional cultural expressions is fragmented across multiple legal frameworks. The Copyright Act, 1957 protects original literary and artistic works but generally requires identifiable authorship and limited periods of protection.[15] Similarly, the Designs Act, 2000 protects novel and original designs but does not comfortably fit cultural displays that go beyond generations.[16] The Trademarks Act, 1999 protects distinctive commercial identifiers but is not designed to safeguard community-owned cultural heritage.[17] The most relevant mechanism is the Geographical Indication of Goods (Registration and Protection) Act, 1999, which protects products possessing qualities or reputations attributable to a specific geographical origin.[18] However, geographical indication protection applies only to qualifying goods and does not comprehensively protect all forms of traditional cultural expression.[19]
At the international level, the Agreement on TRIPS establishes minimum standards of intellectual property protection, while the WIPO has undertaken extensive discussions regarding the protection of traditional knowledge and traditional cultural expressions.[20] Scholars have consistently observed that conventional intellectual property frameworks were developed to protect individual innovation rather than collectively inherited cultural heritage.[21] Judicial decisions addressing geographical indications and intellectual property rights similarly demonstrate the challenges of applying existing legal doctrines to community-based cultural assets.[22] These concerns form the foundation of the contemporary debate regarding the adequacy of legal protection available to Indian traditional cultural expressions within the global luxury fashion industry.
Legal Analysis
The main challenge in protecting Indian traditional cultural expressions lies in the fact that existing intellectual property frameworks were designed primarily to safeguard individual innovation and commercial enterprise rather than collectively inherited cultural heritage.[23] As a result, traditional cultural expressions often occupy an untouched area despite their significant cultural and economic value.[24]
The Copyright Act, 1957 provides protection to original literary, artistic and creative works.[25] However, copyright protection is fundamentally premised upon identifiable authorship and a limited duration of protection.[26] Traditional cultural expressions such as Mukaish embroidery, traditional jewellery designs and indigenous motifs are maintained over generations and cannot be credited to a single author.[27] As a result, a lot of traditional art forms don’t meet the prerequisites for copyright protection.[28] When luxury fashion firms mix traditional cultural themes into modern products, this restriction becomes very important. Although the resulting fashion products may qualify for copyright protection, the originating communities often remain without a corresponding legal remedy.[29] Due to this imbalance created by the copyright system, commercial adaptation may be legally recognized while the original cultural expression is not adequately protected.[30]
The Designs Act of 2000 imposes similar restrictions. Only unique and innovative designs are eligible for design protection.[31] Traditional cultural expressions, by their very nature, have existed for extended periods and are frequently embedded within established cultural practices.[32] As a result, many typical designs are unable to meet the legislation’s criteria for innovation.[33] This leads to a dilemma in which a high-end fashion firm may get legal protection for a modified version of a classic design, yet the original cultural expression is not covered by the law.[34] Such an outcome raises important questions regarding the suitability of conventional design law in addressing cultural heritage concerns.[35]
Among existing legal mechanisms, geographical indication protection offers the most promising avenue for safeguarding traditional cultural products.[36] The GI Act, 1999 protects goods whose qualities, reputation or characteristics are attributable to a particular geographical origin.[37] Products such as Kolhapuri Chappals have received geographical indication status, thereby recognising the connection between the product and its originating community.[38] Nevertheless, geographical indication protection remains limited in scope. It protects the geographical association of a product rather than the broader cultural expression embodied within it.[39] Furthermore, enforcement becomes significantly more complex when allegedly appropriative conduct occurs outside Indian jurisdiction through global fashion supply chains and international markets.[40]
The limitations of domestic law are further reflected at the international level. The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) establishes minimum standards of intellectual property protection but provides only limited protection for geographical indications and does not create a comprehensive framework for traditional cultural expressions.[41] While the World Intellectual Property Organization has undertaken extensive discussions regarding the protection of traditional knowledge and traditional cultural expressions, no universally binding international regime currently exists.[42] Consequently, communities seeking protection often encounter fragmented legal mechanisms that were not specifically designed to address collective cultural ownership.[43]
These deficiencies become particularly apparent when examining controversies involving luxury fashion brands drawing inspiration from Indian cultural heritage.[44] In many instances, the issue is not direct counterfeiting or trademark infringement but rather the commercial utilisation of culturally significant designs, techniques or symbols in circumstances where existing legal frameworks provide no clear requirement of attribution, consent or benefit-sharing.[45] As a result, conduct that may be perceived as cultural appropriation from an ethical perspective frequently falls outside the scope of actionable legal infringement.[46]
It is therefore submitted that the existing intellectual property framework provides only partial protection to Indian traditional cultural expressions.[47] Copyright, design and trademark laws largely prioritise individual creators and commercial entities, whereas traditional cultural expressions are community-based, intergenerational and collectively maintained.[48] Geographical indication law addresses certain aspects of this protection gap but remains insufficient as a comprehensive solution.[49] Accordingly, the recurring disputes involving luxury fashion brands reveal not merely isolated controversies but a structural limitation within contemporary intellectual property law itself.
Case Law Discussion
A significant judicial development concerning geographical indication protection is Tea Board of India v ITC Ltd. The dispute arose when ITC sought to use the term “Darjeeling Lounge” for one of its establishments. The Tea Board of India argued that the use of the word “Darjeeling” diluted the reputation associated with Darjeeling tea, a registered geographical indication. Although the litigation involved complex questions concerning the scope of geographical indication protection, it highlighted the legal difficulties associated with safeguarding products whose commercial value derives from geographical reputation and cultural heritage. The case demonstrated that geographical indication protection may prevent unauthorised commercial associations in certain circumstances; however, it also revealed the limitations of relying exclusively upon geographical indications to protect broader cultural identities. This principle is directly relevant to traditional cultural expressions, as products such as Kolhapuri Chappals similarly derive value from their historical and geographical associations.[50]
A further illustration is provided by Scotch Whisky Association v Golden Bottling Ltd, where the issue concerned the misuse of geographical references associated with Scotch whisky. The court recognised the importance of protecting the reputation and distinctiveness attached to geographically linked products. The judgment reaffirmed that geographical indication protection serves not merely economic interests but also preserves the goodwill and authenticity associated with traditional products. Nevertheless, the case also reflected the territorial nature of geographical indication enforcement, a challenge that becomes particularly significant when cultural products are referenced or adapted by multinational luxury fashion brands operating across multiple jurisdictions. Accordingly, the decision underscores both the utility and the limitations of geographical indication law in addressing cultural appropriation concerns.[51]
The relationship between luxury fashion and intellectual property protection is further illustrated by Christian Louboutin SAS v Nakul Bajaj. The dispute concerned the unauthorised sale and advertisement of luxury fashion products through an online platform. The Delhi High Court recognised the significance of protecting the intellectual property rights and commercial reputation of luxury brands, holding that intermediaries may incur liability when actively participating in infringing activities. The decision reaffirmed the robust legal protection available to luxury fashion houses under contemporary intellectual property law. However, it simultaneously highlights a notable imbalance. While luxury brands possess effective mechanisms to protect trademarks, designs and commercial goodwill, traditional cultural expressions often lack comparable legal safeguards. The contrast exposed by this case is central to the present research, as it demonstrates how existing intellectual property frameworks provide extensive protection to commercial entities while offering only fragmented protection to community-owned cultural heritage.[52]
Collectively, these decisions reveal that current legal frameworks recognise the importance of protecting reputation, authenticity and commercial goodwill. However, they also demonstrate that existing doctrines remain better suited to protecting identifiable commercial rights holders than collectively inherited cultural expressions. This judicial trend reinforces the broader argument that significant protection gaps continue to exist in relation to Indian traditional cultural heritage within the global luxury fashion industry.[53]
Critical Analysis and Findings
The foregoing analysis demonstrates that the principal weakness of existing intellectual property frameworks lies in their inability to accommodate the collective and intergenerational nature of traditional cultural expressions. Contemporary intellectual property law is primarily structured around identifiable creators, commercial ownership and limited periods of protection. Traditional cultural expressions, by contrast, are community-based, culturally embedded and transmitted across generations. Consequently, many forms of Indian cultural heritage fall outside the scope of conventional intellectual property protection despite possessing substantial cultural and commercial value.
A notable judicial trend is the continued reliance on established intellectual property doctrines when addressing disputes involving reputation, goodwill and geographical association. Courts have generally interpreted intellectual property rights within their traditional boundaries rather than extending protection to broader cultural interests. While such an approach promotes legal certainty, it simultaneously exposes a significant protection gap. The result is a legal framework that effectively safeguards luxury brands and commercial rights holders while providing limited remedies to communities whose cultural expressions inspire commercially successful products.[54]
Furthermore, geographical indication protection, although valuable, remains an incomplete solution. Its protection is confined to qualifying goods linked to a specific geographical origin and does not extend comprehensively to cultural motifs, traditional craftsmanship, artistic techniques or symbolic expressions. Accordingly, many traditional cultural expressions remain vulnerable to commercial appropriation even where cultural and economic harm may be evident.
Comparative developments also indicate the need for reform. Jurisdictions such as Australia and New Zealand have increasingly recognised the importance of protecting indigenous cultural heritage through specialised legal and policy mechanisms. Similarly, ongoing discussions within the World Intellectual Property Organization reflect growing international recognition that traditional cultural expressions require protection beyond conventional intellectual property models.
It is therefore submitted that the existing legal framework inadequately addresses the realities of cultural appropriation within the luxury fashion industry. The absence of clear rules concerning attribution, prior consent and equitable benefit-sharing permits the commercial utilisation of traditional cultural expressions without meaningful community participation. A more effective approach would involve the development of a sui generis protection regime specifically designed to recognise collective ownership, preserve cultural integrity and ensure that originating communities share in the economic benefits derived from their cultural heritage.
Conclusion
This article examined whether existing intellectual property and geographical indication laws adequately protect Indian traditional cultural expressions from commercial exploitation by luxury fashion brands. The analysis demonstrates that while copyright, trademark, design and geographical indication laws provide certain forms of protection, they were not designed to address the collective, intergenerational and community-based nature of traditional cultural expressions. Consequently, significant gaps remain in relation to attribution, consent and equitable benefit-sharing.
The study further established that geographical indication protection, although valuable in safeguarding products linked to specific geographical origins, offers only limited protection against the broader appropriation of cultural motifs, traditional craftsmanship and indigenous artistic expressions. Judicial developments similarly indicate that existing legal frameworks remain primarily focused on protecting identifiable commercial rights holders rather than community-owned cultural heritage. As a result, traditional cultural expressions frequently remain vulnerable to commercial use by global fashion brands without meaningful legal accountability.
Accordingly, the research question must be answered in the negative. Existing intellectual property and geographical indication regimes do not provide comprehensive protection for Indian traditional cultural expressions. Legislative reform is therefore warranted. Future legal frameworks should incorporate mechanisms for attribution, prior informed consent and equitable benefit-sharing, while exploring the development of a sui generis regime specifically designed to protect traditional cultural heritage. Such reforms would better balance creative innovation with the preservation of cultural integrity in the global fashion industry.[55]
References and Bibliography
Cases
Christian Louboutin SAS v Nakul Bajaj 2018 SCC OnLine Del 12215.
Scotch Whisky Association v Golden Bottling Ltd 2006 (32) PTC 656 (Del).
Tea Board India v ITC Ltd (2011) 45 PTC 241 (Cal).
Legislation
Copyright Act 1957.
Designs Act 2000.
Geographical Indications of Goods (Registration and Protection) Act 1999.
Trademarks Act 1999.
International Instruments
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) 1869 UNTS 299 (adopted 15 April 1994, entered into force 1 January 1995).
Books
Gangjee D, Relocating the Law of Geographical Indications (Cambridge University Press 2012).
Scafidi S, Who Owns Culture? Appropriation and Authenticity in American Law (Rutgers University Press 2005).
Journal Articles
Ginsburg JC, ‘The Concept of Authorship in Comparative Copyright Law’ (2003) 52 DePaul Law Review 1063.
Kuruk P, ‘Protecting Folklore under Modern Intellectual Property Regimes: A Reappraisal of the Tensions between Individual and Communal Rights’ (1999) 48 American University Law Review 769.
Seville C, ‘Fashion, Cultural Heritage and Intellectual Property’ (2019) 41 European Intellectual Property Review 331.
Reports and Institutional Materials
World Intellectual Property Organization, The Protection of Traditional Cultural Expressions: Draft Articles (WIPO 2024).
World Intellectual Property Organization, Traditional Cultural Expressions (WIPO 2024).
Official Registrations
Geographical Indications Registry, Registered Geographical Indications Journal: Kolhapuri Chappal Registration.
[1] Susan Scafidi, Who Owns Culture? Appropriation and Authenticity in American Law (Rutgers University Press 2005).
[2] Catherine Seville, ‘Fashion, Cultural Heritage and Intellectual Property’ (2019) 41 European Intellectual Property Review 331
[3] World Intellectual Property Organization, Traditional Cultural Expressions (WIPO 2024).
[4] Susan Scafidi, Who Owns Culture? Appropriation and Authenticity in American Law (Rutgers University Press 2005) 89–112.
[5] Dev Gangjee, Relocating the Law of Geographical Indications (Cambridge University Press 2012).
[6] World Intellectual Property Organization, The Protection of Traditional Cultural Expressions: Draft Articles (WIPO).
[7] Paul Kuruk, ‘Protecting Folklore under Modern Intellectual Property Regimes: A Reappraisal of the Tensions between Individual and Communal Rights’ (1999) 48 American University Law Review 769.
[8] Geographical Indications of Goods (Registration and Protection) Act 1999; Dev Gangjee, Relocating the Law of Geographical Indications (Cambridge University Press 2012).
[9] World Intellectual Property Organization, Traditional Cultural Expressions (WIPO 2024).
[10] World Intellectual Property Organization, The Protection of Traditional Cultural Expressions: Draft Articles (WIPO 2024).
[11] World Intellectual Property Organization, Traditional Cultural Expressions (WIPO 2024).
[12] Susan Scafidi, Who Owns Culture? Appropriation and Authenticity in American Law (Rutgers University Press 2005).
[13] Susan Scafidi, Who Owns Culture? Appropriation and Authenticity in American Law (Rutgers University Press 2005) 89–112.
[14] Catherine Seville, ‘Fashion, Cultural Heritage and Intellectual Property’ (2019) 41 European Intellectual Property Review 331.
[15] Copyright Act 1957, ss 13–22.
[16] Designs Act 2000, ss 2(d), 4.
[17] Trademarks Act 1999, ss 2(zb), 29.
[18] Geographical Indications of Goods (Registration and Protection) Act 1999, ss 2(e), 21.
[19] Dev Gangjee, Relocating the Law of Geographical Indications (Cambridge University Press 2012) 45–67.
[20] Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) 1869 UNTS 299; World Intellectual Property Organization, The Protection of Traditional Cultural Expressions: Draft Articles (WIPO 2024).
[21] Paul Kuruk, ‘Protecting Folklore under Modern Intellectual Property Regimes: A Reappraisal of the Tensions between Individual and Communal Rights’ (1999) 48 American University Law Review 769.
[22] Tea Board India v ITC Ltd (2011) 45 PTC 241 (Cal); Scotch Whisky Association v Golden Bottling Ltd 2006 (32) PTC 656 (Del).
[23] Paul Kuruk, ‘Protecting Folklore under Modern Intellectual Property Regimes: A Reappraisal of the Tensions between Individual and Communal Rights’ (1999) 48 American University Law Review 769.
[24] Dev Gangjee, Relocating the Law of Geographical Indications (Cambridge University Press 2012).
[25]Copyright Act 1957, s 13
[26]Copyright Act 1957, ss 13–22.
[27] World Intellectual Property Organization, Traditional Cultural Expressions (WIPO 2024).
[28] Paul Kuruk, ‘Protecting Folklore under Modern Intellectual Property Regimes: A Reappraisal of the Tensions between Individual and Communal Rights’ (1999) 48 American University Law Review 769.
[29] Jane C Ginsburg, ‘The Concept of Authorship in Comparative Copyright Law’ (2003) 52 DePaul Law Review 1063.
[30] Paul Kuruk, ‘Protecting Folklore under Modern Intellectual Property Regimes: A Reappraisal of the Tensions between Individual and Communal Rights’ (1999) 48 American University Law Review 769.
[31] Designs Act 2000, s 4.
[32] World Intellectual Property Organization, Traditional Cultural Expressions (WIPO 2024).
[33] Designs Act 2000, s 4.
[34] Dev Gangjee, Relocating the Law of Geographical Indications (Cambridge University Press 2012).
[35] Catherine Seville, ‘Fashion, Cultural Heritage and Intellectual Property’ (2019) 41 European Intellectual Property Review 331.
[36] Dev Gangjee, Relocating the Law of Geographical Indications (Cambridge University Press 2012).
[37] Geographical Indications of Goods (Registration and Protection) Act 1999, ss 2(e), 21.
[38] Geographical Indications Registry, GI Application No 108: Kolhapuri Chappal.
[39] Dev Gangjee, Relocating the Law of Geographical Indications (Cambridge University Press 2012).
[40] Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) 1869 UNTS 299.
[41] Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) 1869 UNTS 299.
[42] World Intellectual Property Organization, The Protection of Traditional Cultural Expressions: Draft Articles (WIPO 2024).
[43] Paul Kuruk, ‘Protecting Folklore under Modern Intellectual Property Regimes: A Reappraisal of the Tensions between Individual and Communal Rights’ (1999) 48 American University Law Review 769.
[44] Susan Scafidi, Who Owns Culture? Appropriation and Authenticity in American Law (Rutgers University Press 2005).
[45] Susan Scafidi, Who Owns Culture? Appropriation and Authenticity in American Law (Rutgers University Press 2005).
[46] Catherine Seville, ‘Fashion, Cultural Heritage and Intellectual Property’ (2019) 41 European Intellectual Property Review 331.
[47] Dev Gangjee, Relocating the Law of Geographical Indications (Cambridge University Press 2012).
[48] Paul Kuruk, ‘Protecting Folklore under Modern Intellectual Property Regimes: A Reappraisal of the Tensions between Individual and Communal Rights’ (1999) 48 American University Law Review 769.
[49] Dev Gangjee, Relocating the Law of Geographical Indications (Cambridge University Press 2012).
[50] Tea Board India v ITC Ltd (2011) 45 PTC 241 (Cal).
[51] Scotch Whisky Association v Golden Bottling Ltd 2006 (32) PTC 656 (Del).
[52] Christian Louboutin SAS v Nakul Bajaj 2018 SCC OnLine Del 12215
[53] Dev Gangjee, Relocating the Law of Geographical Indications (Cambridge University Press 2012).
[54] Tea Board India v ITC Ltd (2011) 45 PTC 241 (Cal); Christian Louboutin SAS v Nakul Bajaj 2018 SCC OnLine Del 12215.
[55] World Intellectual Property Organization, The Protection of Traditional Cultural Expressions: Draft Articles (WIPO 2024).
