Threads of Heritage, Gaps in Law: The Global Misappropriation of Indian Traditional Designs

ABSTRACT

The rapid integration of traditional cultural elements into global fashion has escalate concerns regarding the misappropriation of Indian traditional designs such as Kolhapuri chappals and Bandhej textiles. Despite the existence of legal protections under the Geographical Indications of Goods (Registration and Protection) Act, 1999 and broader intellectual property framework, such designs continue to deprive economic benefit to artisan communities. This article centres around the central question: why do Indian traditional designs remain vulnerable despite formal legal recognition?

Adopting a doctrinal and comparative research methodology, the study analyses domestic legal frameworks, relevant judicial decisions, and emerging international developments relating to Traditional Cultural Expressions. It further incorporates a critical examination of digital marketplace situations, highlighting the role of algorithm-driven platforms in selling unauthorised replication.

The findings reveal that existing legal regimes are structurally inadequate due to their territorial limitations, reliance on individual authorship, and preference for commercially identifiable rights. These challenges are further enhanced by weak international coordination and the absence of regulatory framework in digital commerce. The article argues for a paradigm shift towards a more inclusive and adaptive legal framework that recognises collective cultural ownership, strengthens cross-border enforcement, and addresses platform-based exploitation. Such reforms are essential to ensure both cultural preservation and equitable economic participation in the global fashion industry.

KEYWORDS

Geographical Indications (GI)

Traditional Cultural Expressions (TCEs)

Fashion Law

Cultural Misappropriation

Intellectual Property Rights (IPR)

Artisan Communities

Digital Marketplace Exploitation

INTRODUCTION

The global fashion industry has been increasingly looking to traditional crafts for inspiration and this has often blurred the line between cultural appreciation and misappropriation. In recent years, international fashion brands and digital marketplaces have commercialised products that closely resemble Indian traditional designs, such as Kolhapuri chappals and Bandhej textiles, without attribution, consent or economic benefit to the artisan communities that have preserved these crafts for generations. From a mere case of imitation by luxury houses, it has now become a larger ecosystem of digital duplication, where e-commerce platforms enable the mass sale of “Indian-style” products, with little to no verification of authenticity.

India has adopted different mechanisms to safeguard and recognise its rich cultural heritage through Geographical Indications of Goods (Registration and Protection) Act, 1999, which seeks to protect the identity,origin and authenticity of region-specific products. However, the continued global misappropriation of such designs reveals a significant gap between legal recognition and effective implementation of protection. This gap is further aggravate in the digital marketplace, where algorithm-driven visibility often privileges cheaper replicas over authentic, artisan-produced goods, thereby further exaggerating the problem.

At the international level, efforts to address these concerns—particularly through ongoing developments relating to Traditional Cultural Expressions (TCEs) under the World Intellectual Property Organization—indicate a growing recognition of the need for collective cultural protection. Nevertheless, the absence of a binding and enforceable global framework, coupled with variations in regional approaches such as the relatively stronger Geographical Indications regime within the European Union, underscores the fragmented nature of existing protections.

This article argues that the misappropriation of Indian traditional designs persists not only due to the limitations of domestic intellectual property frameworks but also as a result of unregulated digital marketplaces and inadequate international legal coordination. Through a doctrinal and comparative analysis, this paper examines the shortcomings of existing laws, the emerging challenges posed by platform economies, and the need for a more integrated and enforceable approach to protecting traditional cultural expressions in global fashion.

The protection of traditional designs within the framework of intellectual property law presents a complex intersection of culture, commerce, and legal doctrine. At the domestic level, India has sought to safeguard its rich repository of traditional crafts through the Geographical Indications of Goods (Registration and Protection) Act, 1999. A Geographical Indication (GI) is defined as a sign used on goods that have a specific geographical origin and possess qualities or a reputation attributable to that origin. The primary objective of GI protection is to prevent unauthorised use and to preserve the authenticity and distinctiveness of region-specific products such as Kolhapuri chappals and Bandhej textiles.

However, while the GI regime effectively links products to their place of origin, its scope remains inherently territorial. Protection is largely confined within national boundaries unless separately recognised in foreign jurisdictions. This limitation becomes particularly significant in the context of global fashion, where traditional designs are frequently replicated and commercialised across borders without falling squarely within the ambit of infringement under domestic law. Moreover, other branches of intellectual property law, including copyright and design protection, offer limited recourse. Copyright law requires identifiable authorship and originality, while design law emphasises novelty—criteria that are often incompatible with traditional cultural expressions, which are collectively created and transmitted across generations.

At the international level, the protection of Traditional Cultural Expressions (TCEs) has emerged as an area of growing concern. The World Intellectual Property Organization (WIPO) has undertaken sustained efforts to develop a legal framework addressing the misappropriation of such expressions, including recent treaty-level discussions in 2024. Despite these developments, there remains no binding and universally enforceable regime that adequately safeguards community-owned cultural heritage. Existing instruments, such as the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), provide limited recognition of GIs but do not comprehensively address the broader issue of cultural appropriation.

Comparatively, certain jurisdictions, particularly within the European Union, have developed more robust GI systems with stronger cross-border enforcement mechanisms. Additionally, countries such as Australia and New Zealand have explored legal approaches that recognise the rights of indigenous communities over their cultural expressions. These models reflect a shift towards acknowledging collective ownership and cultural sensitivity, elements that are often absent in conventional intellectual property frameworks.

Scholarly discourse has consistently highlighted the inadequacy of existing legal regimes in addressing the unique nature of traditional knowledge and cultural expressions. Judicial commentary, though limited in directly addressing fashion-related misappropriation, has underscored the challenges of fitting traditional designs within rigid intellectual property categories. Consequently, the current legal landscape reveals a fragmented and evolving framework, struggling to reconcile the protection of heritage with the realities of globalised and increasingly digitised markets.

CASE LAWS

Tea Board of India v. ITC Ltd., Calcutta High Court, 2019 SCC OnLine Cal 548

Whether the use of the term “Darjeeling” by ITC Ltd. for its hospitality services (“Darjeeling Lounge”) amounted to infringement of the registered Geographical Indication associated with Darjeeling tea.

Under the Geographical Indications of Goods (Registration and Protection) Act, 1999, a GI protects a product against unauthorised use that misleads consumers or harms its reputation. However, such protection is limited to specific goods and requires a direct connection with the geographical origin. The court examined whether the use of “Darjeeling” in a non-competing sector could mislead consumers or shrink the GI. It was held that since the use was not in relation to tea and did not create consumer confusion regarding origin, it did not constitute infringement.

The court ruled in favour of ITC Ltd., affirming the limited, product-specific scope of GI protection.

This case directly illustrates the inadequacy of GI protection in addressing indirect or appropriation. In the global fashion industry, brands may replicate the visual and cultural essence of traditional designs such as Kolhapuri chappals without explicitly referencing their geographical origin. As a result, they are free from legal liability while still earning commercial benefit, demonstrating a clear gap between legal protection and actual cultural exploitation.

Bulun Bulun v. R & T Textiles Pty Ltd, Federal Court of Australia, 3 September 1998, (1998) 86 FCR 244

Whether the unauthorised reproduction of Aboriginal artwork constituted copyright infringement, and whether copyright law adequately protects communal cultural ownership.

Copyright law protects original artistic works and grants exclusive rights to the author. However, it is fundamentally based on individual authorship and does not recognise collective cultural ownership.

The court found that the defendant had reproduced the artwork without authorisation, thereby infringing copyright. While the court acknowledged the cultural and communal significance of the artwork, it confined legal protection to the individual artist rather than the broader indigenous community.

Relief was granted based on copyright infringement, but the judgment did not extend protection to the collective cultural rights of the community.

This case highlights a fundamental limitation of intellectual property law in addressing traditional cultural expressions. In the Indian context, designs such as Bandhej or tribal textiles are collectively developed and created by generations of particular communities . The absence of legal recognition for such communal ownership enables global fashion brands to appropriate these designs without accountability, requiring the need for a more inclusive legal framework.

III. Christian Louboutin SAS v. Abubaker & Ors., Delhi High Court, 2018 (2018 SCC OnLine Del 11961)

Whether the distinctive red sole of a shoe could be protected as a trademark under Indian law.

Trademark law allows protection of non-conventional marks, including colours, provided they have acquired distinctiveness and function as a source identifier.

The court evaluated whether the red sole had acquired secondary meaning and was uniquely associated with the Louboutin brand. Upon finding substantial evidence of reputation and consumer recognition, the court granted protection against unauthorised use.

The court recognised the red sole as a well-known trademark and restrained its infringement.

This case demonstrates that the legal system effectively protects design elements when supported by strong branding and market recognition. However, it also exposes a structural imbalance: while global fashion brands can secure protection through commercial identity, traditional artisans lack the resources and visibility to establish such recognition. Consequently, culturally significant designs remain vulnerable, highlighting the disparity between legal theory and practical protection.

CRITICAL ANALYSIS AND FINDINGS

The analysis in this article reveals that the misappropriation of Indian traditional designs is not merely a result of outlying legal gaps, but rather the result of a structured mismatch between conventional intellectual property frameworks and the evolving realities of globalised and digitised fashion market industry. While statutory mechanisms such as the Geographical Indications of Goods (Registration and Protection) Act, 1999 [1]provide a framework for protection, their effectiveness remains constrained by territorial and product-specific limitation[2]

A primary limitation lies in the inherently territorial nature of GI protection. As observed in Tea Board of India v. ITC Ltd. (Calcutta High Court, 2019),[3] the scope of protection is confined to specific goods, thereby allowing indirect appropriation to fall outside its scope. This doctrinal limitation becomes problematic in the fashion industry, where cultural elements are frequently adapted Consequently, global brands are able to extract the cultural and commercial value of traditional designs without giving any recognition or reward.[4]

Further, the inadequacy of conventional intellectual property framework in addressing collective ownership is evident. [5]The decision in Bulun Bulun v. R & T Textiles Pty Ltd (Federal Court of Australia, 1998)[6] underscores that copyright law, while capable of protecting individual expressions, fails to recognise the communal and intergenerational nature of traditional cultural expressions. In the Indian context, this results in a legal vacuum, as artisan communities—being collective custodians rather than individual authors—are effectively excluded from such protection.[7]

Judicial trends also indicate a preference for commercially identifiable rights over culturally embedded ones. As demonstrated in Christian Louboutin SAS v. Abubaker & Ors.(Delhi High Court, 2018)[8], courts are willing to extend robust protection to design elements when they are backed by strong branding and market recognition. However, this approach privileges corporate entities over traditional artisans, who lack the resources and institutional support necessary to establish such commercial identity. This reflects a broader structural imbalance within the legal system, where protection is based upon market visibility rather than cultural significance.

In addition to doctrinal limitations, the rise of digital marketplaces has introduced a new and largely unregulated dimension to cultural misappropriation. E-commerce platforms facilitate the global circulation of “Indian-style” produ

cts without mechanisms for verifying authenticity or origin[9]. Algorithm-driven visibility often prioritises low-cost replicas over authentic artisan goods, thereby reinforcing economic marginalisation. The absence of regulatory oversight in this domain highlights a critical policy gap, as existing intermediary liability frameworks do not adequately address issues of cultural exploitation in digital environments.

Comparatively, jurisdictions such as the European Union have developed more integrated GI systems[10] with stronger cross-border enforcement mechanisms, while countries like Australia and New Zealand have begun to recognise indigenous cultural rights within legal frameworks.These models demonstrate a shift towards acknowledging collective ownership and cultural sensitivity, offering valuable insights for reform. In contrast, the Indian framework remains predominantly product-centric and territorially confined, limiting its effectiveness in a global context.

From a policy perspective, the current legal landscape fails to reconcile the tension between cultural preservation and commercial exploitation. The absence of binding international standards for the protection of Traditional Cultural Expressions, despite ongoing efforts by the World Intellectual Property Organization, further exacerbates this issue[11].As a result, traditional designs are increasingly commodified within global markets, detached from their cultural origins and deprived of equitable benefit-sharing.

Accordingly, this study finds that the vulnerability of Indian traditional designs is rooted not only in legal inadequacies but also in structural and technological factors. The convergence of weak international enforcement, rigid intellectual property doctrines, and unregulated digital marketplaces has created an environment in which cultural appropriation can thrive with minimal accountability. Addressing this issue requires a paradigm shift towards more inclusive, community-centric, and technologically responsive legal frameworks.

Conclusion

This article examines why Indian traditional designs continue to remain exposed to global embezzlement despite the existence of legal protections under Geographical Indications and broader intellectual property frameworks both within India and Internationally. This article showcases by crtically analyzing that this vulnerability is not incidental, but well planned in nature. Existing legal frameworks, while formally recognising the value of traditional products, fail to adequately adapt with the cultural, collective, and evolving nature of traditional designs.

The study finds that the Geographical Indications framework, as observed in Tea Board of India v. ITC Ltd., is limited by its territorial and product-specific scope, making it ineffective against indirect forms of appropriation. Similarly, conventional intellectual property regimes, particularly copyright law, remain ill-equipped to protect traditional cultural expressions due to their reliance on individual authorship, as highlighted in Bulun Bulun v. R & T Textiles Pty Ltd. Judicial trends further reveal a preference for commercially identifiable rights, with cases such as Christian Louboutin SAS v. Abubaker & Ors.demonstrating that protection is more available to corporate entities with established branding than to dispersed artisan communities.

The research question—why Indian traditional designs remain unprotected despite legal recognition—can be answered through a series of doctrinal limitations, lack of recognition of collective ownership of communities who have created art from generations, no actual enforcement of international principles established, and the growing influence of digital marketplaces that operate beyond regulatory frameworks. Together, these factors create an ecosystem in which cultural appropriation is not only possible but economically incentivised.

From the above discussions observations are that , stricter reforms must move beyond mere legal adjustments towards a more adaptive framework. First, there is a need to expand the scope of framework that seeks to protect and recognise community ownership within domestic law, taking inspirations from emerging international developments under the World Intellectual Property Organization. Second, India should actively focus on building stronger bilateral and multilateral agreements to ensure cross-border recognition and enforcement of GI and cultural rights. Third, regulatory interventions must address the role of digital platforms by introducing authenticity verification mechanisms and accountability standards for digital promotion of authentic art pieces derived by particular communities. Finally, institutional support for artisan communities—through collective branding, certification systems, and digital market access—must be developed to bridge the gap between legal recognition and economic benefit that will help them to be able to establish there art globally.

Lastly, the protection of traditional designs cannot be viewed solely as a matter of intellectual property law; it is equally a question of right to fairness and economic equity. Unless legal systems evolve to see and work upon the realities of globalisation and digital commerce in fashion industry, traditional knowledge will continue to be commercialized without consent, recognition, and reward. A shift towards a more community-specific, and globally coordinated legal framework which understands the rights of communities is therefore not merely desirable, but indispensable.

REFERENCES & BIBLIOGRAPHY

CASES

• Bulun Bulun v. R & T Textiles Pty Ltd, (1998) 86 F.C.R. 244 (Austl.).
• Christian Louboutin SAS v. Abubaker & Ors., 2018 SCC OnLine Del 11961 (Delhi H.C.).
• Tea Board, India v. ITC Ltd., C.S. No. 250 of 2010 (Cal. H.C. Feb. 4, 2019).

STATUTES & LEGISLATION

• Copyright Act, 1957 (India).
• Geographical Indications of Goods (Registration and Protection) Act, 1999 (India).
• Trade Marks Act, 1999 (India).

III. INTERNATIONAL AGREEMENTS & MATERIALS

• Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, 1869 U.N.T.S. 299.
• World Intellectual Property Organization, Intergovernmental Committee on Intellectual IV. EUROPEAN & COMPARATIVE LAW
• Regulation (EU) No 1151/2012 of the European Parliament and of the Council of Nov. 21, 2012 on quality schemes for agricultural products and foodstuffs.
• Property and Genetic Resources, Traditional Knowledge and Folklore (2024).

BOOKS

• DEV GANGJEE, RELOCATING THE LAW OF GEOGRAPHICAL INDICATIONS (Cambridge Univ. Press 2012).
• SUSAN SCAFIDI, WHO OWNS CULTURE? APPROPRIATION AND AUTHENTICITY IN AMERICAN LAW (Rutgers Univ. Press 2005).
• WILLIAM CORNISH ET AL., INTELLECTUAL PROPERTY: PATENTS, COPYRIGHT, TRADE MARKS AND ALLIED RIGHTS (9th ed. 2019).

JOURNAL ARTICLES

• Kal Raustiala & Christopher Sprigman, The Piracy Paradox: Innovation and Intellectual Property in Fashion Design, 92 Va. L. Rev. 1687 (2006).
• Madhavi Sunder, IP³, 59 Stan. L. Rev. 257 (2006).
• Aneesh Aneesh, Algorithmic Governance, 3 Regulation & Governance 347 (2009).

VII. REPORTS & ONLINE SOURCES

• World Fair Trade Organization, Fair Trade and Cultural Sustainability Report (2020).
• World Intellectual Property Organization, Traditional Cultural Expressions, https://www.wipo.int/tk/en/folklore/ (last visited Mar. 5, 2026).

[1] Geographical Indications of Goods (Registration and Protection) Act, 1999 (India).

[2] Dev Gangjee, Relocating the Law of Geographical Indications 210 (Cambridge Univ. Press 2012).

[3] Tea Board, India v. ITC Ltd., C.S. No. 250 of 2010 (Cal. H.C. Feb. 4, 2019).

[4] Kal Raustiala & Christopher Sprigman, The Piracy Paradox: Innovation and Intellectual Property in Fashion Design, 92 Va. L. Rev. 1687 (2006).

[5] Madhavi Sunder, IP³, 59 Stan. L. Rev. 257 (2006).

[6] Bulun Bulun v. R & T Textiles Pty Ltd, (1998) 86 F.C.R. 244 (Austl.).

[7] Copyright Act, 1957 (India).

[8] Christian Louboutin SAS v. Abubaker & Ors., 2018 SCC OnLine Del 11961 (Delhi H.C.).

[9] USAN SCAFIDI, WHO OWNS CULTURE? 112 (2005).

[10] Regulation (EU) No 1151/2012 of the European Parliament and of the Council of Nov. 21, 2012.

[11] World Intellectual Property Organization, Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (WIPO IGC) (2024).