In the fashion industry, ideas and creation are the most vital things. One owes its career in fashion to the fact that how creative his or her mind is and how they can produce new and unique trends in the market.  Thus, the foundation of the fashion industry lies in the ideas, thoughts, and creativity of the people involved in it. 

Unlike countries like France, India does not have any such law that makes the buyers of counterfeit products criminally liable. In India, currently, there is no such law. Rather, Indian law offers the owners of the original products the right to seek a permanent injunction in order to prevent the sale of such duplicate products. The law also provides them the remedy to ask for compensation to make up for their losses. This is where IPR comes into the picture. The creations of the designers in the fashion industry are treated as the intellectual creations of an individual, and the IP law seeks to protect those creations by giving those original creators the exclusive right to use and promote such creations and prevent others from using them without prior permission and from gaining monetary damages or other suitable remedies in case of unauthorized access or use.

Duplication of products in the fashion industry:

The fashion industry is one of the most prone to duplication and piracy.  The piracy of designs in the fashion industry can be categorized into two heads, namely:

Knockoffs: It is when someone very closely copies or imitates an original brand or design, but it is not identical rather similar and is also sold under a completely different brand name.  As it is not identical, nor does it aims at deceiving customers into believing it to be an original, it is not illegal. However, the catch here is that in case the resemblance is proved to the extent that it can deceive others into believing it to be a different brand, an action can be brought against it. 

Counterfeit: A Counterfeit is identical copying or imitation of the original product. It leads to the infringement of the Trademark of the Original designer and is sold at a lower price.  Counterfeiting is illegal, and action could be bought against counterfeiting. In fact, fashion brands spend millions to stop the resale of such counterfeited products. High-end brands like Chanel, Coach, Cartier, Tory Burch, Gucci have previously been involved in litigations dealing counterfeiting and have won millions of dollars.  

Trademark Protection: 

The role of a trademark in the fashion industry is significant. Brand equity is a key feature of the fashion industry. Well-recognized brands are severely conscious of their brand image. Trademark helps to attain customer's attention. Also, a trademark not only protects the brand name but also protects the size, shape, colour, packaging, or even sales technique of a brand or company. Hence, in order to protect its name, image, logo, product design, and techniques, and in order to make sure that its goods are easily recognizable by the customers, a company or a brand needs to register its goods under a distinguishable trademark under the provisions of trademark law. A brand can also produce multiple varieties of goods under the same trademarked symbol or logo registered for the brand. 

In Micolube India Ltd. vs. Rakesh Kumar trading as Saurabh Industries & Ors., The court held that even though a single entity cannot be registered under both the Designs act and Trademarks Act, a product registered under Section 11 of designs act (which states that the proprietor of the registered design shall have ten-year copyright protection for the same) can be used as a trademark. This is because, as per Section 19 of the designs act (which talks about the cancellation of registration of a design), the use of a registered design as a trademark is not a valid ground for discontinuation or cancellation of registration of the design. This judgment widened the scope of the trademark protection by doubling the protection under trademark as well as the design act. 

Patent Protection:

Patents are not directly linked with the protection of goods under the fashion industry but are very much useful and essential in the protection of the process of manufacturing of the goods. In simple words, Patents refer to the protection of new inventions. An essential point to be kept in mind is that artistic creations cannot be protected under the patents act. A patent protects what goes behind manufacturing such products. This includes the equipment, machinery, technology, etc., used to manufacture or create such products. Patents come in handy when there is a technical invention that leads to the manufacturing of new or distinct goods, and the brand is afraid that the competitors do not get to use similar technology. Patent invention grants protection of 14 years for a design patent and protection of 20 years for a utility patent which starts from the filing date. Once the protection ends, it falls to be used by anyone under the public domain. 

Copyright Protection: 

Copyright law gives the owner of a creation exclusive right to reproduce, communicate his or her work and translate such work. Again, a layout of a design may be protected under the copyright act, but the actual finished product is not. Thus copyright protects the design work of a designer. 

When it comes to protecting a design, the copyright act and design act do not go hand in hand. According to section 15(1) of the Copyright Act, protection under the Copyright Act is not applicable to designs that are registered under the Design Act. Therefore an appropriately registerable will be protected under section 15(2) of the Copyright Act if it is not registered under the Designs act. However, on reproduction of the design on more than 50 articles by any industrial process, the copyright protection expires. 

In Ritika Private Limited v. Biba Apparels Private Limited, the court clarified the issue of designs that are eligible for copyright protection under both the Copyright Act, 1957 and Design Act, 2000. Rohit Bal, in 2017 was the first designer in India to copyright his entire collection, followed by other prominent designers like Anita Dongre, Anju Modi, Ritu Kumar, who also went ahead and copyrighted their entire collection.

Design act:

Design refers to the shape, colour, pattern, etc., of the product. As far as the fashion industry is concerned, the design act doesn’t explicitly protects the full piece of clothing or the garment; rather, what it protects is the design of the product. In order to protect the product, the design should have been registered under the Design Act, 2000. Unregistered designs are not eligible for protection by the Act, nor can they be claimed for damages. Protection for a design is eligible for ten years, which is extendable for a total period of 15 years, subject to certain conditions. In order to register a work under the Design act 2000, it must be new and non-published, and the novelty of the artist must reflect from design.

Trade secrets

Trade secrets include things like a list of key suppliers and/or buyers, the use of software technologies for the designs, logistics management of the entire value chain, etc. In certain fashion businesses, trade secrets aim at shielding software-oriented business secrets and models that serve as a base to the entire business strategy to supply a limited quantity of fashion products.

How to possibly overcome infringement in the fashion industry: 

Even in the presence of legal protections, most of the time, the defaulters are the designers of the product. With the lack of knowledge of their rights and privileges under the IP law, the designers suffer losses.  Following are few suggestions that might help solve the problem to a certain extent –

  1. Increasing the threshold limit of the commodities produced by industrial application from 50 to more number under the Copyright Act: This is necessary considering the population and competition in the fashion industry, and also the technological advancements that lead to such duplication. 

  2. Amending the laws in such a way that makes both the purchaser and the seller of the counterfeits criminally liable. The laws must be made with reference to international standards like that of France.

  3. Fixing a percentage of profit to be paid as compensation or penalty by the infringer company. 

  4. Strengthening the IPR laws and making them much stricter and possibly imposing criminal charges on the counterfeiters along with granting of compensation. Thus making it easier to control such counterfeiting if not total prevention.

  5. Making the Designers woke and aware of the need to protect their IP and sensitizing them about their rights available for the same. This would solve a major portion of the problem. 

  6. Making the general public or consumers aware of such duplications and the implications of buying such products so as to avoid marketing of such counterfeit products. 



The fashion industry has significantly evolved in recent years. However, Designers and fashion experts face issues regarding their creations due to their lack of knowledge regarding their rights and privileges provided under IP laws. Although it is almost impossible to completely eliminate piracy and duplication and their sale, owing to the huge markets practicing this, if the original creation or designers are protected in a systematic manner, it reduces the chances of getting duplicated, thus reducing damages that could incur otherwise. Thus it is essential for the designers and original creators to be aware of their rights granted under IPR laws and should try to get the right protection for their creation.



                                                                    -BY AAYUSHI CHOPRA