Authored By: Nupur Rajesh Telavane
Government Law College, Mumbai
Abstract
The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) marked a turning point in global intellectual property regulation. It represents the first comprehensive attempt to bring all forms of IP protection under a single framework. This article examines its implications for fashion law in developing countries, using a doctrinal and analytical approach. It explores TRIPS provisions from the perspective of fashion design and creativity, and considers their impact on domestic enforcement. The article further examines relevant case laws to demonstrate challenges faced by developing nations. The study concludes that a nuanced framework is necessary to help these countries enforce TRIPS effectively while ensuring fair and equitable outcomes.
Introduction
Fashion is an intersection of arts, commerce and cultural identity. Everyday clothes and accessories have functional utility and unique artistic expression. Fashion is a cumulative product of culture and one’s own artistic views, making it particularly vulnerable to imitation and replication. It thus necessitates intellectual property protection.
The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is a WTO-administered multilateral treaty concluded in 1994. The objective of the treaty was to protect and enforce intellectual property rights. It represents the first comprehensive attempt to bring almost all forms of intellectual property- copyright, trademark, geographical indication, industrial designs, patents, layout designs of integrated circuits and trade secrets under one umbrella. However, it does not exist in isolation; it coexists with earlier international agreements such as the Paris Convention and the Berne Convention.
The agreement has both benefits and problems when assessed from a developing country’s perspective. On the brighter side, the agreement ensures stronger protection and uniformity by aligning local laws with international frameworks. However, on the negative side, the mandatory enforcement makes it difficult for countries to balance national interest with global expectations. The countries struggle with weak enforcement systems, an informal market and the need to keep clothing affordable for their people.
This article analyses the effects of the TRIPS agreement on fashion law in developing countries. It first explains the background of the agreement, then analyses its rules and their effect on developing countries. Further, it examines relevant case laws and finally concludes with a few suggestions to make IP law more balanced.
Background
The TRIPS Agreement, signed in 1994, came into force in 1995 as part of the WTO framework. It was a result of discussions during the Uruguay Rounds of the General Agreement on Tariffs and Trade (GATT) from 1989 to 1990. The primary objective [1]of the agreement was to establish a minimum standard of regulation for intellectual property rights by WTO members.
The agreement marked a turning point in the intellectual property rights regulation. Before the TRIPS Agreement, international IP regulation was fragmented; separate conventions governed different forms of IP rights. For instance, the Paris Convention was for patents and trademarks, while the Berne Convention was for copyrights. These treaties established important principles but lacked universal coverage. The TRIPS Agreement addressed these drawbacks by establishing binding rules and a proper enforcement mechanism that applied equally to all WTO members.
TRIPS represents the first comprehensive attempt to bring almost all forms of intellectual property under one umbrella. It encompasses copyrights, trademarks, geographical indications, industrial designs, patents, layout designs of integrated circuits and trade secrets. The agreements strive to maintain a balance between international and national laws by covering diverse forms of IP rights. It thereby makes international trade more predictable. Compliance with the provisions of the agreement is mandatory[2], meaning all the member countries are legally obliged to implement the rules. The agreement also provides for dispute settlement [3]identical to the WTO dispute settlement procedures. These features of the agreement distinguish it from the earlier ones.
Crucially, TRIPS is not a stand-alone treaty. It works alongside the older agreements, such as the Paris Convention and the Berne Convention. It incorporates the important principles of the older agreements while also adopting new ones to cover the previously unregulated areas, such as trade secrets and integrated circuits. This feature of the agreement ensures continuity of earlier laws while highlighting its capacity to adopt newer areas.
Legal Analysis
Articles 9 to 14 of the agreement deal with copyright and related rights. It incorporates the Berne Convention and describes the terms of protection, limitations and exceptions. In the fashion industry, it covers original textile prints, surface patterns, sketches, and visual marketing materials. For example, Louis Vuitton’s Monogram Canvas- the repeating floral and geometric motifs has protection as an artistic work under multiple intellectual properties, including copyright. The provisions safeguard artists’ creative works from imitation and grant exclusive rights. However, the main issue arises from overlap with design law. Once a design gets registered under the Designs Act, it loses its copyright protection. In developing countries, it particularly means confusion and weak enforcement.
Articles 15 to 21 are related to trademark. The agreement defines a trademark as any sign that helps identify a particular good or service. Gucci’s interlocking double G logo is an example of a trademark, as it helps buyers identify the original products. The rights conferred upon the owner, exceptions, term of protection, requirement of use, licensing and assignment are specified and regulated in the agreement. The primary problem suffered by developing countries is the large-scale sale of counterfeit products. It thus necessitates protection, not only to shield businesses from imitation but also to help customers identify genuine products.
Articles 22 to 24 protect geographical indications, which link their quality, reputation and other characteristics to their place of origin. In fashion, it extends to traditional textiles such as Chanderi Sarees from Madhya Pradesh and Kancheepuram Silk from Tamil Nadu. Geographical indications help preserve cultural heritage and prevent its exploitation by global brands. However, the issue faced by the developing countries is the lack of awareness and resources to register GI’s. As a result, many valuable artworks remain unregistered and vulnerable to exploitation.
Articles 25 and 26 of the agreement are regarding industrial designs. In fashion, it applies to the shape, pattern, composition, and decoration of products that are new and unique to themselves. The Hermes Birkin bag’s unique shape is a good example of industrial design in practice. This feature ensures that the owner has exclusive rights over their design to prevent its misuse. However, developing countries struggle with a lack of awareness among small designers, and the overlap with copyright law further adds confusion, thereby weakening enforcement.
Articles 27 to 34 of the agreement protect inventions involving an inventive step and have industrial application through patents. In fashion, it covers textiles, techniques and technology. The inventor’s exclusive rights as provided under the agreement encourage innovation and technological progress in the fashion industry. However, patent registration in developing countries is often costly and complex, making it difficult for small designers to access. There is also a risk that multinational corporations may copy local innovations and secure a patent first, leaving small designers unable to protect their own inventions.
Article 39 of the agreement protects confidential information, also called trade secrets. In fashion, it covers stitching techniques, marketing strategies, etc. For example, Nike’s Flyknit technique. This protection is essential to safeguard companies from unfair competition without the formal registration of their secrets. However, in developing countries, enforcement is weak and small businesses often lack the means to secure trade secrets. It thus leaves local enterprises vulnerable to exploitation by larger competitors.
Article 40 of the agreement recognises that licensing contracts can sometimes restrict competition and block technology transfer, resulting in adverse effects on trade. In fashion, this may involve restrictive clauses in brand licensing and franchising contracts that limit innovation, block entry of smaller designers, and ultimately restrict competition. The agreement allows members to take action against this abuse of IP rights to secure a conducive environment for healthy competition.
Case law discussion
- Microfibers Inc vs Girdhar & Co Anr
In Microfibres Inc. v. Girdhar & Co[4]. (2009), the Delhi High Court addressed the overlap between copyright and design law. It clarified whether fabric designs based on original paintings can enjoy protection under the Copyright Act, 1957, or require registration under the Designs Act, 2000.
Microfibres Inc. manufactured upholstery fabrics based on original paintings curated by its employees or purchased by the company. Girdhar & Co. produced similar fabrics, which the learned Single Judge found to be identical to those of Microfibres. However, the Single Judge held that the designs were capable of registration under the Designs Act and since Microfibers had not registered them, they can not avail protection under the Copyright Act. Microfibers appealed, claiming their designs were artistic works and deserved protection under copyright.
The issue before the court was to decide whether fabric designs based on original paintings qualify as artistic works under the Copyright Act or as designs under the Design Act.
Section 2(c) of the Copyright Act defines artistic works, while Section 29(d) of the Designs Act defines designs but excludes artistic works. Section 15(2) of the Copyright Act states that a design capable of being registered under the Design Act but is not registered loses its protection guaranteed under the Copyright Act if produced more than fifty times.
The court held that Microfibers’ designs were initially artistic works, but their industrial application converted them into designs under the Design Act. Since they had not registered them, they lost their copyright protection. The court clarified that artistic works remain under copyright unless used in manufacturing.
This case highlights the overlap between copyright and design law that creates confusion for small designers. Many designers in developing countries lack awareness and resources to register their designs under the Design Act, leaving them vulnerable to copying and unfair competition.
- Christian Louboutin SAS vs Abubaker & Ors (2018)
Christian Louboutin SAS vs Abubaker & Ors[5], decided by the Delhi High Court, is a landmark case in Indian fashion law. It clarifies whether a single colour applied to a specific part of the product can constitute a valid trademark.
The plaintiff, Christian Louboutin SAS, is a luxury footwear company. It has registered its Red Sole mark, the red-coloured soles of women’s shoes. The defendant’s brand VERONICA also sold red-coloured women’s shoes in Mumbai. The plaintiff sought an injunction, damages and relief for infringement and passing off.
The issue before the court was whether a company could claim trademark rights over a single colour applied to the soles of shoes and sue others for infringement or passing off if they use the same colour.
Sections 2(m) and 2(zb) of the Trade Marks Act define a trademark as any mark that helps people distinguish between goods. Section 9 prohibits registration of a generic trademark. Section 29 states infringement provisions. Order XII Rule 6 CPC empowers courts to dismiss lawsuits that lack a proper legal basis, even if the plaintiff’s statements are assumed true.
The court held that the red sole did not constitute a valid cause of action under Indian law. It further held that the plaintiff failed to establish distinctiveness sufficient to sustain infringement claims and dismissed the case at the admission stage.
The case underscores the challenges faced by designers in developing countries to get a fashion trademark. It highlights the gap between global IP standards and local realities, showing how imitation goods can be produced and sold on a larger scale with relative ease.
Critical analysis
The TRIPS framework and its impact on fashion law in developing countries reveal both strengths and challenges. On the positive side, it has introduced a uniform global standard for intellectual property protection, which helps developing nations integrate into international trade systems. This provision encourages foreign investment and provides local designers with a legal framework to safeguard their creations. Moreover, the expansion of coverage under TRIPS ensures diverse forms of protection, ranging from patents and trademarks to copyrights and geographical indications, for fashion innovations and traditional textiles.
However, the drawbacks are equally critical. One major challenge is the high cost of enforcement. Registration and litigation procedures are often expensive, leaving small designers unable to access IP protection. Even when laws exist, enforcement mechanisms remain weak due to limited institutional capacity, corruption, or lack of awareness among designers. The existence of informal markets and imitation goods further weakens customer trust. Additionally, overlaps between different IP rights create confusion. This uncertainty hampers effective protection. Finally, many artisans lack awareness of their rights, making them vulnerable to exploitation by larger companies, while governments must balance IP enforcement with the public interest in affordable clothing.
To address these challenges, several reforms are necessary. Simplifying registration procedures and reducing fees would make IP protection more accessible to small designers. Governments should also invest in awareness programs to educate small designers about their rights and responsibilities. Strong enforcement infrastructure through specialised IP courts or fast-track mechanisms would ensure quicker resolution of disputes. Furthermore, greater support for geographical indications can empower local communities to benefit economically from their cultural heritage. In the end, adopting a balanced approach that allows flexible mechanisms such as compulsory licensing or fair use exceptions would ensure that IP enforcement does not compromise public access to affordable clothing.
Conclusion
In conclusion, the TRIPS Agreement has played an important role in shaping intellectual property protection across the globe, including the fashion industry. For developing countries, it offers both opportunities and challenges. On the one hand, TRIPS provides a uniform framework that strengthens legal protection for designers, encourages innovation, and helps local industries compete internationally. On the other hand, strict compliance often strains limited resources, weak enforcement mechanisms, and socio‑economic realities where affordability and accessibility remain priorities. Fashion, being both artistic and functional, exposes gaps in TRIPS, particularly in areas like design protection and cultural heritage. These challenges highlight the need for balanced reforms that safeguard creativity while respecting local contexts. Ultimately, TRIPS has advanced global IP standards, but its application in fashion law for developing nations must evolve to ensure fairness, inclusivity, and sustainable growth of the fashion industry.
Reference(S):
[1] Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) (opened for signature 15 April 1994, entered into force 1 January 1995) 1869 UNTS 299, art 7.
[2] Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) (opened for signature 15 April 1994, entered into force 1 January 1995) 1869 UNTS 299, art 1.
[3] Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) (opened for signature 15 April 1994, entered into force 1 January 1995) 1869 UNTS 299, art 64.
[4] Microfibres Inc v Girdhar & Co [2009] RFA(OS) 25/2006 (Delhi High Court).
[5] Christian Louboutin SAS v Abubaker & Ors [2018] CS (COMM) 714/2018 (Delhi High Court).
