Intellectual Property Protection in Fashion: Analyzing the Challenges and Opportunities


This study explores the protection of intellectual property in the fashion industry. The Indian fashion industry has been in an exponential growth mode and the driving force for such growth is the designers, some of whom are well-known internationally. The growth of this industry has also brought with it some issues like the piracy of designs. Designs that are considered to be one’s intellectual innovation are being imitated. Concerned designers and companies are demanding better laws for adequate protection of their intellectual property. Against this backdrop, this paper is an attempt to analyze the existing laws and provide suggestions to improve the intellectual property rights regime in India. The paper also sheds light on various rules existing in different countries so that their relevant portions can be systematically implemented in India.


Intellectual Property Rights, Fashion Industry, Counterfeit, Design, Trademark


The main stages in any fashion design include idea conception, formulation or designing the particular garment, ultimately ending in obtaining brand protection. All of these need inputs from legal professionals at every stage to ensure that there are no issues that may crop up at a later stage. In the absence of any regulations to prevent fashion designs from being copied, the risk of the designs being copied and used by others is quite high. The fashion industry cannot rely solely on traditional laws to protect them from some of these issues concerning intellectual property rights. As fashion designs belong to the person who created them, (given that it was their idea), the law of the land must provide them adequate legal protection and prevent others from using or copying the ideas. The law must prevent persons from copying such intellectual property and anyone who does it should be penalized as it infringes upon the rights of the owner.

Research Methodology

This paper is descriptive and the research is based on secondary sources for the analysis of the Challenges and Opportunities for Intellectual Property Protection in Fashion. Secondary sources of information like journals and websites are used for the research.

Review of Literature

“The Crimes of Fashion: The Effects of Trademark and Copyright Infringement in the Fashion Industry by Carolyn Marcelo1

In this paper, the author states certain ways through which the consumer can differentiate between a real and a fake item. One must not blindly trust sellers and must do thorough research before rushing to purchase anything. Fittings of zippers and handles should be of good, sturdy quality. While shopping online, individuals should ensure boxes and authentication cards are a part of their package. The researcher discusses how luxury brands like Fendi and Louis Vuitton add holograms with tracking features to their products. The practice of educating customers is important as police in the European city of Naples found a warehouse where fake holograms were created to fool the customers as well as police officials. This paper discusses efforts taken by the International Anti-Counterfeiting Coalition, an organization that works towards safeguarding intellectual property. The fashion magazine Harper’s Bazaar launched a campaign “Fakes Are Never In Fashion” to reveal criminal activities involving counterfeit luxury items. The author also touches on the topics of terrorism and drug trafficking. Reports from reliable news agencies stated that house parties conducted in people’s homes involved the selling of counterfeit items. Payment had to be compulsorily made via cash for the sellers to earn their profit. This money is then used to fund terrorism. The researcher concludes by sharing the message that consumers need to know the kind of illegal activities the money from their purchase is used for. If individuals are made aware of the harmful consequences of counterfeiting, an end may be put to this crime.

1CarolynMarcelo, The Crimes of Fashion: The Effects of Trademark and Copyright Infringement in the Fashion Industry, LIBERTY UNIVERSITY DIGITAL COMMONS. 3, 4-26(2011).

“Intellectual Property Rights Protection of Fashion Design in India: A Panoramic View by Shishir Tiwari2

In this paper, the researcher delves into the topic of piracy within the fashion industry and provides justifications as to why the protection of intellectual property rights is necessary for fashion design. In the absence of any sort of protection, those persons copying will take undue advantage of the efforts of the creators and discourage future investments in innovations and new inventions. Copying also affects work done to build a brand image. The author compares the numerous safeguards offered under Indian law to those found in the United States of America. A designer must demonstrate the following to receive protection for their works under the “Copyright Act, of 1957”: “a) that the creation is an “original artistic work” under the Act’s definition and not a “design” under the definition of the Designs Act, 2000; and b) that the garment to which the design is applied has not been replicated by the individual more than fifty times using an industrial process.” The researcher however comments that this protection cannot be extended to mass market collections as their production would exceed fifty pieces. The fashion industry takes up a significant portion of the global economy and fresh and new designs are at the core of it. The intellectual property regime in India needs to be developed to avoid piracy in fashion.

The kind of Intellectual Property protections that are available in India to the owner of rights in fashion designs

Patent – A patent is a right granted for an invention. The right is exclusive. Patents could be of the following types: Design Patents – based on non-functional or decorative features. Utility Patents – for inventions of new and useful processes. Any new invention or innovation, be it a technical aspect, material design or any fabric is eligible for patent protection. Patents cover peculiar features. A shoe with a fascinating shape mainly has aesthetic features and no utility function. For such a shoe, a design patent can be granted.

2ShishirTiwari,Intellectual Property Rights Protection of Fashion Design in India: A Panoramic View,SSRN ELECTRONIC JOURNAL 1, 2-27(2016).

Trademark – Brands or Logos are trademarks that help distinguish one product from another. In the fashion industry, distinguishing features of a designer’s work may be protected using a trademark. The design of a dress itself is a trademark. Under Indian law, trademarks receive protection under the “Trade Marks Act, of 1999.” A trademark is necessary to establish brand loyalty and trust between the brand and the customer.

Copyright – Copyright grants the author/proprietor certain rights to his or her work. Individuals with this right may translate, modify, or duplicate such material. These rights are delegated through a license. The work’s originator is regarded as the original owner of the copyright. Infringement occurs when a copyrighted work is used without permission. From a commercial standpoint, the designer’s protected right is critical. Fashion design is a form of design in the fashion business, and its protection may be understood through India’s “Designs Act, 2000.” In the event of a disagreement, the owner is better protected under the “Copyright Act, of 1957” than under the “Designs Act, of 2000” since fashion design relates more to an “artistic work” defined under the “Copyright Act, of 1957” than to a “design” defined under the “Designs Act, 2000.” In India, fashion designers prefer to refer to their creations as “artistic works” for protection under the “Copyright Act, of 1957.”

Problems with Designs Act, 2000 – The laws under the Designs Act do not align with the requirements of the industry due to the following reasons:

  1. Unregistered designs are not protected – If designs have not been registered, then no benefits can be availed under the Act. One is barred from filing a suit to recover damages for copying designs without any approval by any authority. Change is constant in the fashion industry and new collections are launched in a quick time frame. Fashion Designers would benefit from safeguarding measures that do not depend entirely on the registration of designs. The concept of protection for designs that are not registered is not covered under this Act.
  • Time-consuming registration process – The process is long drawn and takes roughly 10-12 months. A new clothing item in a store lasts for one season, which is a maximum of 3-4 months. The only solution in this scenario is getting the designs registered way before the items are launched in the market. Until the process of registration is completed, the design

can be exploited by anyone with ulterior motives. The process of registration is complicated and takes many months which is certainly not ideal for the rapidly advancing fashion design industry in India.

  • Damages in a suit are insufficient – Recovery of damages from any individual partaking in the act of piracy of registered designs is possible under the Designs Act. However, a limit on the recovery amount is imposed should not exceed fifty thousand rupees. This limit is insufficient when compared to the amount of money spent on creating couture creations which are close to lakhs of rupees.


Branding mainly includes logos, terms, design, and advertisements. It helps differentiate a product sold by many vendors. Branding is the most important strategy used by companies engaged in fashion. A strong brand identity may be established by taking necessary steps to protect the brand name or logo and maintain a portfolio for the brand. Creative work belonging to businesses is protected from infringers which ultimately leads to an increase in profits from the ownership of valuable assets.

A trademark can be assigned or licensed. An assigned trademark indicates that the owner has sold the ownership of the trademark. Whereas, licensing suggests a lease of the right. Licensing of a brand to third parties, undertaken to sell products, ensures the intellectual property or “soul” of a company remains intact. The brand value of any business increases by around 80% if its intellectual property is thoroughly safeguarded. Most commercial transaction contracts list conditions for the manner of use of intellectual property. Some examples of this are the duration of the relation, the geographical bounds for the sale of the products, the price positioning, the manner of distribution, and other considerations.

Both, the brand owners and the licensees profit from the licensing of intellectual property. The consumer product licensing industry is worth more than a hundred billion dollars in sales. Brand licensing is an alternate source of income for the licensor. One’s brand or intellectual property is monetized at a very low cost. A brand owner may authorize another entity to use its copyright or patent rights provided they are paid royalties for it. If this is managed systematically, the licensor

has minimal risk. The license leaves companies with a robust network that mainly includes technology, markets, and customer bases. There are many benefits enjoyed by the licensee as well. Licensees can utilize the rights to a certain property without taking on the stresses of ownership. Licensees benefit from access to logos, brands, and trademarks. Their association with a famous designer or well-known trademark helps in selling products as their value has now increased. Through licensing, licensees can incorporate specific designs into their products.

In the fashion industry, the licensing is handled by a manufacturer or distributor for a fee. Such licensing is not known to the end consumer. The brand takes care of the quality of products and the brand image is maintained without any issues. Brand licensing agreements usually set out terms like confidentiality of intellectual property rights.

Counterfeiting and Piracy in Fashion

The unlawful practice of creating and marketing a low-quality knockoff of well-known goods under its original product’s brand name is known as “brand counterfeiting.” People who desire to keep up with the current fashion end up buying counterfeit goods that are half the price without anybody noticing that they aren’t authentic. In this business, brand counterfeiting leads to trademark and patent infringement. Nowadays, counterfeiting operations are carried out on the Internet. Brand counterfeiting causes financial damage to brands. A comprehensive supply chain and a systematic strategy can assist to stop the practice of counterfeiting.

Product counterfeiting is a massive business in itself and almost every product is being imitated. This practice involves making fakes or unauthorized replicas of the real product. “This must be discouraged as these products are not only of poor quality but also because this sullies the brand name of the original product.” According to a 2019 report by the OECD and the European Union’s Intellectual Property Office, trade in counterfeit goods stands at 3.3% of global trade.”3

Fashion forgery is when innovations and designs of big fashion companies are ripped off and cheaper versions are produced by drawing inspiration from them. For example – Forever 21 is a major culprit in knocking off other brands.4


33-of-world-trade-and-rising.html  (last visited July 22, 2023).

4FASHIONFORGERY, (last visited July 22,2023).

Canal Street, New York – The primary centre for imitation handbags and watches is in this region of New York. While knockoffs are replica bags that are only loosely based on the original items, counterfeit bags are best defined as having the same model, colour, and branding as the original. “One can buy knockoffs of luxury brands like Chanel, Gucci, Louis Vuitton, and others on Canal Street, and these high-quality knockoffs require more “effort”.”According to New York law, purchasing counterfeit items is not prohibited, but selling them is. The sellers may also lose ownership of their products in addition to receiving severe penalties. Due to the high number of fake goods offered there, law enforcement conducts frequent inspections. The cost of counterfeit designer goods is halves that of genuine designer goods. The mayor of New York City claims that the sale of fake goods costs the city $1 billion in lost sales tax each year. He calls it “an organised crime” to engage in this activity. Anti-counterfeiting teams had previously conducted raids on Canal Street, which led to the closure of certain businesses.

Redressal Mechanisms

Anti-Piracy actions – Clothing designs are not protected by intellectual property laws in the United States of America, making piracy easy. “The American Apparel and Footwear Association and the Council of Fashion Designers of America have led the fight against piracy.” The Design Piracy Prohibition Act was introduced in 2006, and it was reintroduced in 2010 as the Innovation Design Protection and Piracy Prevention Act.” These measures were meant to offer fashion designers short-term protection. Design protection is challenging because of the rapidity with which fashion changes and the industry’s reliance on the replication of concepts at different price ranges. Many people think that some clothing companies that produce pirated clothing finance criminal and terrorist operations.

Anti-Counterfeiting – According to the World Customs Organization, over 10% of the world trade in fashion is reported to be counterfeit. The International Anti Counterfeiting Coalition revealed that 20% of the counterfeit products seized by U.S. Customs every year are made up of fashion-related products. Many brands are employing in-house professionals to keep a check on anti-counterfeiting activities and travel to ports to train U.S. Customs officers to identify counterfeit items before they enter the market. To ward off copycat productions, brands have begun using custom manufacturing techniques. For example – “Hermes uses linen threads that

are coated with beeswax for the stitching on its handbags.”5 This helps identify authentic Hermes bags as the use of synthetic threads would have a different look. Brands are also relying on technology to counter counterfeit activities. “Electronic Product Code enabled RFID provides the option to assign a unique serial number to each item which helps in tracking and detection of authenticity on a database.” RFID technology has had significant developments in recent years. Now, RFID tags are woven into the garment. Brands like Dolce & Gabbana and Chanel use hologram stickers with serial numbers as they cannot be accurately and easily reproduced.”6 It is not just high fashion houses that are using such technology, even middle-market brands are using RFID tags and sensors to distinguish between the real product and the fake.

Government legislation that is tough and protects intellectual properties along with collaboration between manufacturers and various organizations to protect the identity of the brand will help promote anti-counterfeit packaging technologies in markets that are still in the developing stage. European institutions became concerned with counterfeiting activities as it was affecting the safety of customers. They decided to adopt rules to fight counterfeiting and create harmony among intellectual property rights owners in European member-states. “A new European regulation 608/2013/EC that came into force in 2014 extended the powers of customs authorities and widened the scope of the right of information of companies that demanded confiscation of counterfeit items.”

“Asian countries have taken a variety of steps to ensure that only safe products are sold on their soil.” Some of these regulations are Taiwan’s Consumer Protection Law, Hong Kong’s Toys and Children’s Product Safety Ordinance, and Japan and China’s product quality and liability legislation.” Merchants and manufacturers in Asia must now maintain better levels of quality and liability.

Infringement Suits

Star Athletica v. Varsity Brands7 The question, in this case, was whether stripes and zigzags, which are common in cheerleading uniforms, could be copyrighted or are they such a key part

5BAGHUNTER, , (last visited July 22,


6Anna Villani, The Fendi Bible, THE VINTAGE BAR, (July 22, 2023, 9:50 PM),

7Varsity Brands, Inc. v. Star Athletica, LLC, No. 10-2508, 2014 WL 819422

of the garment that such legal protection must not be granted. It was argued that without such embellishments, the cheerleading uniform would seem like any other clothing. In its ruling, the Supreme Court of the United States proposed a test for ‘separability’ concerning creative aspects that are part of a garment.

“Puma sues Forever 218 – Puma filed a Patent, Copyright and Trade Dress suit against Forever 21 for offering footwear that were lookalike versions of Rihanna’s Fenty line for Puma. Puma in its suit stated that Forever 21 copied three major footwear designs from Rihanna’s collection. This was done to “trade on the substantial goodwill of Puma, Rihanna and the Fenty shoes.”

Suggestions & Conclusion

The Designs Act, 2000’s Section 2 (d) definition of “fashion design” in India covers individual garment parts rather than the entire article of clothing as a single design. However, it’s critical to recognise that the fashion business is continually growing and that the current system for registering designs cannot keep up with its requirements. The full piece of clothing must be included in the definition of “fashion design” under the Designs Act of 2000 in order to solve this issue. The complete look, form, and arrangement of the clothes should be covered under the Act as opposed to only certain areas.

To address this issue, it is crucial to expand the term of “fashion design” under the Designs Act, 2000 to encompass the entire article of clothing. By doing this, the shape and design of the apparel as a whole—rather than just certain components—would be completely protected.

India may significantly advance its efforts to tackle the problem of fashion design piracy by integrating these recommendations into the Designs Act. Designers will be inspired to produce fresh, innovative ideas when they are sure that their works will be properly protected. The

11Kate Dingwall, Puma sues Forever 21 over Rihanna knock-off, FASHION NETWORK, (July 22, 2023, 9:58 PM),,813738.html

fashion sector will then be encouraged to flourish and expand, creating a more dynamic and creative environment.

In conclusion, modernizing the concept of “fashion design,” streamlining the registration procedure, and providing protection to unregistered designs would all help the Indian fashion sector advance and grow.

Bhairavi Naganath

SVKM’s NMIMS Kirit P. Mehta School of Law, Navi Mumbai