In an age where fashion travels faster than freight and styles are shared before stitches are set, the question that often comes up is as to who owns a fashion aesthetic? Can a designer truly claim legal exclusivity over a garment's cut, embroidery, or silhouette? Indian designers invest considerable time in sketching, draping, and constructing original creations, the protection afforded for the ephemeral originality of fashion is limited. While copyright, design, and trade mark laws collectively offer some protection, the IP regime in India does not resolve some vital issues, particularly in the context of mass production and "inspiration vs. imitation".
Indian copyright law provides protection to "original artistic works", which include drawings and paintings, thereby covering the sketches and two-dimensional representations of fashion designs. However, if a design has been applied to more than fifty articles by an industrial process, copyright ceases and the work can only be protected under the Designs Act, 2000. For example, a bridalwear designer whose original embroidery motif has been used across 70 lehengas cannot seek copyright protection and the protection afforded will be under the Designs Act. Essentially, this implies that the moment creativity hits commercial scale; it exits the realm of copyright.
The position has been reiterated by Courts, including the Delhi High Court. In one such instance, the Delhi High Court held that garments mass-produced for commercial purposes were not protected under copyright
However, not all hope is lost. Where sketches and conceptual drawings exist independently of the final garment, copyright may still offer protection. The Delhi High Court while dealing with an issue of violation of fabric prints, including the underlying drawings/sketches thereof recognized that while the garments themselves may not be protected, the underlying sketches remain original artistic works.1 In practical terms, a fashion house that prepares mood boards, croquis, and concept visuals can safeguard those creative materials, provided they can establish authorship and originality.
Apart from copyright and design protection, moral rights, which are recognized under the Copyright Act, further protect creators from unauthorized distortions of their work and grant them the right to be credited.2 For instance, if an emerging designer's sketches are altered and used by a third-party label without attribution, the designer may invoke moral rights. These rights exist independently of the designer's economic rights.
While protections are available under IP laws, the onus of proof in establishing originality is high. Without documentation like date-stamped sketches, design archives, and prior public displays, it may be difficult for designers to enforce rights, even where similarities are obvious. Furthermore, the proliferation of digital platforms and social media has made it easier for designs to be copied and disseminated rapidly, posing new enforcement challenges for Indian designers. Courts have also maintained a cautious approach in granting broad protections to fashion aesthetics and have done so only when conclusive proof of originality of the design is adduced by the Plaintiff.
The US Supreme Court has on the other handheld that copyright could apply to design elements of cheerleader uniforms if they were conceptually separable from the garment's function. This ruling suggests that certain surface decorations like a Sanganeri motif or mirrorwork pattern, could be copyrightable if they could exist independently as art. Though Indian law has yet to adopt this reasoning formally, it provides a persuasive global precedent for protecting decorative elements.
Trade mark protection for elements like logos, signature motifs, or brand names can also be resorted to by designers. Labels like Sabyasachi or Manish Malhotra frequently trade mark signature motifs, packaging designs, and even hashtags to prevent dilution and unauthorised associations. For example, if a local boutique uses the term "Sabya-style" in its promotions, the designer will be in a position to enforce rights to prevent brand misappropriation. Monograms and patterns have also been protected by Courts on several occasions in India. For instance, the Delhi High Court restrained a Defendant from using monograms and patters similar to those of Louis Vuitton. Consequently,
The bigger hurdle, however, remains systemic. India does not recognize unregistered design rights, as seen in the UK and EU, nor does it treat fashion as fine art the way France does. Protection under the Designs Act requires prior registration and is valid only for ten years (renewable once). Awareness of availability of protection under the Designs Act is yet another hurdle. For instance, a young designer may lack the resources or foresight to register a seasonal collection yet still be vulnerable to large brands copying his/her designs.
The significant burden on designers to maintain a paper trail of their creative process such as conceptualization, sketches, client samples, timelines, and public showcases, so as to substantiate claims also poses an impediment in effective enforcement of rights.
From a practical perspective, designers operating in India today must proactively strategize their IP protection. Copyright the sketches. Register the designs early. Trade mark the label, motif, and product packaging. Use non-disclosure agreements with tailors, stylists, and interns. Keep an archive of everything, from inspiration boards to fabric swatches. Most importantly, educate staff on red flags of violation of rights. In an industry where aesthetic borrowing is rampant, both consciously and subconsciously, designers must assume the burden of proof before imitation becomes litigation.
The onus lies on designers and legal advisors to create layered protection across statutes which provide IP protection in India. As the Indian fashion ecosystem globalizes, and as digital platforms accelerate the lifecycle of trends, the call for effective protection of couture has become vital. Until then, Indian fashion's aesthetic soul will continue to strut the fine line between homage and hijack-armed, hopefully, with a legal toolkit as sharp as a tailor's shears.
Footnotes
1 Rajesh Masrani v. Tahiliani Design Pvt. Ltd., 2008 SCC OnLine Del 1212.
2 The Copyright Act, 1957, Section 57.
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