Journal of Intellectual Property Rights Vol

28, September 2023, pp 432-437

DOI: 10.56042/jipr.v28i5.1422

IPR and Indian Fashion Industry: Challenges and Possibility

Neha Sah† and Ezhilanban J J
School of Fashion Design, Lovely Professional University, G.T. Road, Phagwara — 144 411, Punjab, India

Received: 11thJanuary 2023; revised: 11th May 2023

The fashion industry is principally driven by creation and innovation. The connection that the Global fashion industry
has with Intellectual Property Rights is well documented, however, in India; the comprehensive understanding of the link
between fashion and IPR laws is still at a nascent stage. The big fashion houses can exercise control over their creations
through the right choice of IPR laws but the local, smaller, and emerging sector is more deserted in protecting their
intellectual assets. Also, ignorance about IPR infringement among fashion firms and a lack of stringent reprimands from
policymakers have accelerated consumerism among fashion-conscious consumers by serving counterfeiting products,
building confusion, and devaluing creativity. This article is segmented into three major parts to shed light on the challenges
encountered by small fashion firms, designers, fashion start-ups, and rural textile artisans with respect to protecting
intellectual property. The initial segment will give a short insight into the IPR options like copyrights, design registration,
patents, and trademark, available for the fashion domain and their applicability, moving towards the specific challenges
faced by the local design houses and craftsmen, and finally compiling the possibility of amendments required in IPR laws
for the Indian fashion, apparel, and handicraft sectors.

Keywords: Intellectual Property Rights, Indian Fashion Industry, Indian Fashion Laws, Creativity and Innovation,
Consumerism, Counterfeit Fashion

Innovation and creativity are at the heart of the to reproduce and produce products righteously
fashion industry. It is fuelled by the imagination of owned by others.4 The dearth of mindfulness about
designers and directed by the ever-changing demand intellectual property rights (IPR) that designers can
of consumers for new trends. Just like the use to protect and promote their creations is the
multiplicity of our country India, the Indian fashion underlying issue. In technology-intensive fields IP
industry is versatile too. Not specific to apparel, rights can easily be applied and confirm necessary
shoes, and accessories, it caters to a variety of brands protection cum value for right holders, however, the
and lifestyle commodities as well.1 Traditional skill same is not very much understood in the fashion and
and art forms are also an indistinctive part of this apparel sector which is subjected to volatile and
industry as they provide localized yet exclusive rapid transformations.5
designs and knowledge that further assist in scaling Right from the inception of the idea to the
up the global market value for this sector. The construction of the final product, there are laws to
fashion and apparel industry holds a strong position protect a wide range of aesthetic and functional
in gearing up the Indian economy and is actively details of designs, techniques, and forms at different
serving as a focal point for many international stages in the fashion industry. The awareness and
fashion-forward allies. An industry that is swamped application of Intellectual property rights can benefit
with new ideas on a regular basis is also at high designers in the following two discrete ways.3
risk of losing ownership of its creations to (i) Protection - IPR can halt someone to misuse
counterfeiting.2 Bootlegging of designs is a budding others’ original ideas/designs/symbols/articles/
subject in the fashion industry.3 It would be wrong to textiles without their permission. This not only
assume that the flow of lifting is always from top to prevents plagiarism but also brings credit
bottom and it is the small fashion houses and recognition to the creator of the content.
designers who are thinning creativity. Sometimes big (ii) Capitalization - IPR can bring profits from one’s
brands take advantage of the discrepancy in the law designs by letting him/her enter into licensing
——————— agreements for their designs with third parties.3,6
†
Corresponding author: Email: neha.23436@lpu.co.in Licensing allows individuals to rent their
 SAH & EZHILANBAN: IPR AND INDIAN FASHION INDUSTRY 433

intellectual assets for an agreed period within an be original, not have been disclosed to the public,14
approved territory. and must be expressed in a material form to gain
It is necessary at this point to bring into the picture, protection. Once registered, a design is protected
the IPR laws, relevant to the fashion industry. Though for straight 10 years and protractible by an additional
the responsiveness to IPR protection is gaining 5 years.15
momentum in India, the law relating to the protection This seems to be a more practical and robust mode
of fashion designers’ rights remains unclear. Since the of protection as compared to copyright protection,
country of origin has a decisive role in framing however, in most situations, designers refrain from
specific rights for the creator, the further segment will registering their fashion designs due to the prolonged
help you understand IPR in the Indian context.7, 8 process involved in getting the protection over a
shorter and unpredictable shelf life of the garments in
Scope of IP in Indian Fashion Industry the market, making his hard intellectual creations
The IP Laws that regulate fashion and protect the vulnerable for exploitation during the pendency of the
rights of the creators fall under the Copyright Act of application.13
1957, The Trademarks Act, of 1999, the Geographical
Indications of Goods (Registration and Protection) Trademark as Intellectual Property
Act, of 1999, and the Designs Act of 2000, however, A trademark is an idiosyncratic sign used by a
none is adequate to provide enough support and person or an enterprise for goods and services
coverage to the sector.9, 10 produced or provided by them and can be protected
through registration.5 In the fashion and apparel
Copyright as Intellectual Property
sector, trademarks are of high value as they bring
Fashion designs start with ideas illustrated often on
identity, visibility, and consumer recognition to
paper before they are transformed into creations. The
legitimate producers. Many big clothing brands are
artistic work of designers that is original is protected
seen fighting legal battles to protect their rights over
by copyright.11 Further, the word ‘artistic work’ can
their brands, designs, and patents against knock offs
refer to the following:11, 12
and counterfeiting.16 Top designers mostly cease the
(i) it can be a drawing, painting, a sculpture impact of copying by reinventing their designs from
(ii) a work of building and architecture one fashion term to another and by restrictive
(iii) any other work of imaginative craftsmanship construction and diffusion. The costs of this tactic are
Copyright does not offer full protection to massive but it is sustained by a few yet loyal numbers
utilitarian articles like clothing and only certain of rich buyers who value exclusivity.17
artistic details linked to it can be secured. Designers
Geographical Indications as Intellectual Property
get the authority to materialize their 2-D designs into
3-D forms like a dress/garment. They are free to Much of the opulence and exquisiteness of Indian
transfer their work to the public, share copies or make fashion apparel is attributed to indigenous weaving,
any edition of the work,12 however, another knitting, dyeing, printing, and embroidery techniques.
dimension of the law states that the production of the These are the traditional fashion assets of modern
dress should not exceed 50, post which the copyright apparel.18 The Geographical Indication (GI) brings the
protection ceases to exist.9,11,12A person can obtain name and fame to special products specific to a
copyright protection for his entire life plus 60 years certain region and identifies the local skills,
afterlife.12 communities, and surroundings that impart special
characteristics to products originated or manufactured
Design Registration as Intellectual Property there. These special characteristics may be due to
The industrial application of the design can be natural factors like raw material, soil, climate,
protected under the Design Act. A fashion designer geography, etc., or traditional production methods,
must have duly registered his design to protect it from and preparation techniques exclusive to that region
piracy infringement. The term design covers the ensuing certain quality standards.19,20Chanderi fabric
elements of shape, compositions of lines, colors, and and Bagh prints from Madhya Pradesh, Kani shawl
patterns applied to any article both in two- from Jammu & Kashmir, Mysore silk from
dimensional or three-dimensional forms, and is Karnataka, and Patan patola from Gujarat are a few of
judged solely by the visual appeal.5,13 Designs need to the many examples of textiles protected under GI in
434 J INTELLEC PROP RIGHTS, SEPTEMBER 2023

India.21 Apart from imparting recognition to a product that is “artistic work” with no further subdivisions
by region/territory, protecting consumers against (Fig. 1).
deception, and enhancing sales of fashion goods in a A blur definition of original and creative work in
specific area, GI protection proves to be a valuable these IPRs is again making it difficult to understand
asset for native groups of weavers and designers for and pursue. To have more registrations, a discrete
appreciation, promotion, and enlargement of class of fashion design must be introduced in the
business.18-20 design definition. Awareness about the IPR must be
inculcated into the education system to help young
IPR Challenges and Possibilities in Indian Fashion minds seek benefits from it. Moreover, the existing
and Apparel Sector timelines involved in the entire registration process
International luxury fashion brands Burberry, H&M, may also be shortened to catch up with the pace of
and Richemont created global headlines when they this fast-moving fashion industry.12
smoked their unsold products of millions of worth to
protect their intellectual property and fight Fast Fashion Trends Challenge the Sustainability
counterfeiting. The Indian fashion industry has evolved and Creativity
over the years with a huge amount of innovation and The equation of the fashion industry is constantly
hard work put in by designers. Experimenting with altering with new but short-lived trends coming one
local materials, indigenous techniques of coloration, after another. Lean manufacturing, swift replacement,
and nonpareil design aesthetics created manually, all and just-in-time delivery systems have allowed even
demand protection of their intellectual property. Now, giant fashion firms to stock new designs on an
as stated earlier the Indian fashion industry is advanced basis which surely hurts creativity.5 Retailers
segmented and has both top and bottom-line players. are introducing subtle changes to the existing trend and
Some renowned designers and brands are being active reintroducing it in the market to keep the consumer
for the past couple of years in getting their creations engaged. This allows little to no room for designers to
duly registered under IPR laws, however, the situation IPR accumulation. Fast fashion is the root cause of
is different among the emerging designers, fashion unsustainability and feeble intellectual protection in the
start-ups, and textile handicraft sectors.22 This segment fashion industry. Supplying a mimicked and cheap
will precisely focus on the IPR challenges specific to copy of the most-adored fashion trends as soon as
the fashion entrepreneurs, and traditional textile craft possible to the consumer at a local retail store pushes
units in India. the trendsetters to look for the next new thing.24
Inadequacy in exercising Intellectual property
Copyright v Design Registration Dilemma protection has increased undue pressure on earth
Currently, designers' most sought-after intellectual resources and exploitation of human rights.
property rights are Design rights and the Copyright. In
a general scenario as soon the designer’s original Surfeit Design Piracy
concept is supported with a medium, for instance, an Unlawful reproduction and distribution of original
illustration on paper, it will be considered an artistic fashion designs, logos/labels are common piracy
work, tenable for copyright protection, and no
registration is needed. But most designers are
unaware of the fact that they will lose their ownership
of work if reproduced more than 50 times.23 If the
design is put to commercial use, then it can be secured
under the Designs Act if registered. The process of
design registration is comparatively short and simple
still not faster than the dynamic fashion industry
where designs are copied within a week of their
appearance. Copyright protection of apparel designs
and fashion accessories is still not professed as a
practical option by the creators.12 It is hard to get
exact data on copyright for the fashion and apparel Fig. 1 — Year-wise IPR filing in different fashion-apparel
category as all filing is registered under the category category12
 SAH & EZHILANBAN: IPR AND INDIAN FASHION INDUSTRY 435

issues that happen in the fashion industry globally. exposed our traditional treasure as vulnerable to
Knock-offs and counterfeits are the two fashion imitation, misappropriation, and other unlawful
typologies that are concerned with fashion piracy exploitation. Cheap copies undermine sales of
practices and are often used loosely.25 Knock-offs is a traditional handicrafts as well as the quality reputation
similar but not exact copy of an original fashion of original products.32, 33 GI has been effective in
design, made in cheap material, available at a lower protecting certain textile crafts but there is a dire need
price, and sold under a different label to reach the to educate the Indian Craft communities to indulge in
mass market. Consumers are aware that they are innovation, adaptation, and quality assurance to fight
buying an inexpensive replica of the original competitiveness in the global fashion market. Skilled
product.26 Counterfeit fashion merchandise is almost craftspeople must extensively engage themselves in
identical to the authentic work of the designer and is seeking the right IPR at the right time for their
produced with the intention to cheat and persuade the creation to increase their value while curtailing the
buyers into purchasing the fake copy.27 jeopardies and uncertainties involved.34Strong law
The protection offered under Indian fashion laws is enforcement for malpractices must be established to
hardly effective to protect the fashion design against preserve genuine skills and to prevent unfair
stealing in the first place as the range of fashion competition/stealing. Schemes under IPR that provide
products being counterfeit is unlimited and fashion economic incentives for innovation in the traditional
piracy sometimes happens at such a fast pace that it textile sector must be endorsed.
can deprive the original designer of its first-mover
advantage.28 Designer is mostly left with the option to Indian IPR Policy: The Road Ahead for the
file an infringement case against the stealer. However, Fashion Industry
if proven guilty after a lawsuit, the defendant must India has made slow but steady progress in world
pay a hefty penalty to the plaintiff.26 The counterfeit fashion and in the last three decades, global fashion
apparel business has massive expansion in India has witnessed Indianess in fashion and apparel. Indian
owing to the mushrooming middle-class and young fashion is still profoundly influenced by cultural
population that is willing to buy counterfeit branded inheritance.8 Indian textiles are augmented with
apparel at the lowest available price.29 The capital city complex manufacturing, delicate designs, and
hosts many such markets like Palika bazaar, and indigenous dyeing-printing techniques that may be
Sarojini market which are flooded with consumers attributed to the unique topography of the land, and an
with strong demand for counterfeit fashion products. abundance of skilled labour tied with innovative
The entry of e-commerce has further added to the design techniques. All these have now given Indian
complexities.30 Piracy sedates the creativity of the fashion a distinct identity from the rest of the world.
designers and gives room to copyists to feed the short- The field is full of creativity and extremely
lived fashion culture. The current fashion laws in susceptible to piracy. In the realm of law, the
India need a thorough inspection to combat the rising existence of Fashion law is rising in India. Currently,
counterfeiting problem. a central governing law might be missing to cater to
the fashion field specifically but the nature of
The Oppressed Traditional Handicraft Sector activities rooted in the fashion and apparel business
In India, most of the high-end fashion clothing is and its deep linkage with the environment and
infused with ancestral knowledge. Designers seek economy has wedged the interest of the Indian legal
inspiration from our traditionalinheritance.31 There is fraternity.35
no specific definition for Handicrafts but they can be The existing fashion laws have their deficiencies
understood as traditional cultural expressions (TCEs) and do not offer comprehensive wholesome
in their composition, look, and style, and can also protection to the user, but the fact that unlike in the
symbolize traditional knowledge (TK) representing USA and France, regulation, and implementation of
skills and proficiency conditioned to produce them.32 fashion law in India is quite a new phenomenon, the
Textile handicrafts carry a cultural heritage through prevailing laws are going to be amended and new
the use of regional motifs, coloration techniques, and laws are going to be enacted considering the input
design intricacies that trickled down from generation from the creators and beneficiaries of the fashion
to generation.33 But the current market practices have field. The Fashion Design Council of India (FDCI), a
436 J INTELLEC PROP RIGHTS, SEPTEMBER 2023

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