12 March 2024

Intersecting Laws: Protecting The Creativity Of The Indian Fashion Industry

De Penning & De Penning


Since 1856, De Penning & De Penning has committed ourselves to protecting creative integrity and ingenuity. We believe intellectual property rights are fundamental to propelling innovation forward, providing a framework on which inspiration, modification and healthy competition can grow.
The Indian fashion industry stands as a vibrant testament to the nation's rich cultural diversity and creative prowess. It has evolved into a global force, with designers weaving...
India Intellectual Property
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The Indian fashion industry stands as a vibrant testament to the nation's rich cultural diversity and creative prowess. It has evolved into a global force, with designers weaving innovation into every fabric and stitch. At the heart of this flourishing industry lies the ingenuity of designers who constantly push boundaries, transforming traditional styles into modern statements.

In a creative industry like fashion, Intellectual Property (IP) plays a crucial role as a guardian of new and successful ideas. Designers invest time, skill, and passion into crafting unique pieces that set and define trends. IP protection offers a shield against imitation, safeguarding the fruits of creative labour. It extends beyond aesthetics, fostering an environment where designers feel secure to explore, innovate, and contribute to global fashion.

Exploring the intersection of fashion and law leads to unravelling the nuanced layers of protection that intellectual property laws provide. Understanding the importance of safeguarding originality becomes imperative to sustain the essence of the Indian fashion narrative.


In the world of fashion, intellectual property rights, predominantly defined in the Designs Act of 2000 (the “DG Act”), and the Copyright Act of 1957 (the “CT Act”), play a pivotal role in defining the relationship between innovation and legal protection. Moreover, the jurisprudence has also developed as shape marks under the Trade Marks Act, 1999 (the “TM Act”) . Trademarks serve as crucial identifiers of goods and services, distinguishing them from competitors in the market. The TM Act defines a trademark broadly, encompassing devices, names, signatures, numerals, and shapes of goods, among others. A trademark must be distinctive, capable of graphical representation, and able to differentiate the goods or services of one entity from another. Distinctiveness implies that the mark should not be common or descriptive but should possess a unique quality that sets it apart in the minds of consumers. Graphical representation ensures that the trademark can be visually represented in a clear and precise manner. This representation aids in the registration process and provides a tangible form for the mark.

However, the line between trademarks and designs can often blur, especially concerning the protection of product shapes. While trademarks primarily focus on the source identification function, designs encompass the aesthetic aspects of products. In cases where the shape of a product serves as a trademark, distinguishing between its functional and ornamental aspects becomes crucial.

Moreover, trademarks are subject to distinctiveness requirements, while designs focus on novelty and originality. This difference highlights the need for creators to carefully navigate between trademark and design protection to ensure comprehensive coverage of their intellectual property rights. Understanding the complexities in the interplay between trademarks and designs is essential for creators and businesses seeking to safeguard their innovations in the marketplace.

Fashion, being an art form expressed through garments and accessories, finds its safeguard in the realm of intellectual property. Designers invest not only in the creation of clothing but in the originality, novelty and distinctiveness that sets their work apart. This is where the synergy between fashion and intellectual property comes to life, offering creators a shield against unauthorised replication.

However, the path to protection is not without hurdles. The fast-paced nature of the fashion industry, coupled with the challenge of defining the originality of designs, presents unique obstacles. The DG Act helps creators address these challenges. It defines the scope of design protection, encompassing elements beyond the utilitarian aspects of clothing.

Protecting fashion designs requires a nuanced understanding of both the aesthetic and functional elements. The DG Act offers clarity on what constitutes a registrable design and the duration of its protection, which is 10 years and can be further renewed for an additional period of 5 years. 


Design protection in the Indian fashion landscape involves a crucial step – design registration under the DG Act. This legal process offers creators effective protection against potential infringement, providing designers with a robust shield for their creative endeavours.

The process commences with a meticulous application, detailing the new and novel visual aspects of the design. From the shape, configuration, and pattern to the ornamentation that defines the article, every detail is captured. Once submitted, the application undergoes thorough scrutiny to ensure its adherence to the statutory requirements.

To seek protection under the DG Act, registration is mandatory, and it significantly strengthens the legal standing of designers. It grants them an exclusive right to use, make, and sell their creations, defending against any attempts at unauthorised reproduction. This exclusivity serves as a powerful deterrent, dissuading potential infringers and preserving the novelty of the design.

The importance of design registration amplifies when contemplating the ceaseless churn of the fashion industry. Designs evolve swiftly, and legal protection becomes paramount to secure the investment of time, effort, and creativity. Without registration, there is an open invitation for imitations and replicas to flood the market, diluting the distinctiveness of the original creation.


The interplay between Copyright Law and Design Law in fashion introduces both harmony and discord. Copyright Law primarily safeguards the expression of ideas, while Designs Law protects the visual features of an article. Distinguishing between the two becomes important for designers navigating the legal landscape.

Copyright Law extends its protection over original sketches, graphic designs, and even two-dimensional patterns adorning clothing. However, the protection is not absolute, as it guards the specific expression rather than the underlying idea. This limitation opens the door to a circumstance where similar designs, inspired by the same idea, can coexist without infringing copyright.

Contrastingly, Designs Law handles three-dimensional functionality, shielding the overall appearance of an article. The conflict arises when a design qualifies for protection under both laws. The crux lies in the conceptual separability – if a design element can exist independently of its utilitarian aspects, it is eligible for copyright protection. The tension emerges when these elements overlap, blurring the lines between copyrightable expression and functional design.

In the case of Microfibres Inc. vs. Girdhar & Co. & Anr., 2009 (4) PTC 519 (Del) (DB), the Delhi High Court made a defining statement on the interplay of copyright and design protection in the world of fashion. The court deliberated on the delicate balance between original artistic work under the CT Act and the concurrent protection granted to designs under the DG Act.

. It is pertinent to note that a registered design forfeits copyright protection but gains exclusive rights under the DG Act. Conversely, an unregistered design retains copyright rights until it surpasses 50 reproductions as per Section 15 (2) of the CT Act, elucidating the legislative intent to offer extended protection to purely artistic works. This not only harmonises copyright and design laws but also discusses the coexistence of these protective frameworks in the Indian fashion industry.

The real-world implications of these concepts are offered through cases like Ritika Private Limited vs Biba Apparels Private Limited, 230 (2016) DLT 109  wherein the Court re-affirmed the interplay between CT Act and DG Act and held that “once a drawing, a sketch or a design was used for creation of dresses, then, once dresses cross 50 numbers, no copyright could subsist in drawing and sketch under Copyright Act because of language of Section 15 (2) of the Copyright Act.” . 

 The evolution of jurisprudence, marked by discerning scrutiny of industrial processes and artistic expression, reflects the growing complexity of adjudicating copyright or design claims in the Indian fashion industry. As each case contributes to the legal precedent, it amplifies the need for a nuanced understanding of intellectual property laws to foster a conducive environment for innovation and protection within the fashion industry.


The Delhi Court in Carlsberg Breweries A/S. Vs. Som Distilleries and Breweries Ltd., AIR 2019 Delhi 23  observed the following:

“A registered design owner, this court notices, facially satisfies the test of novelty (of the product's design) and that it was not previously published. For registration, the article must contain uniqueness or novelty in regard to elements such as shape, configuration, pattern, ornament or composition of lines of colours applied to any article; further there must be a visual appeal to the article (i.e. the aesthetic appeal).

However, if the defendant establishes that indeed there was no novelty, or that a similar design had been published earlier, in the public domain, the infringement claim would be repelled. In respect of a passing of claim, distinctiveness of the elements of the mark, its visual or other presentation and its association with the trader or owner needs to be established. 

The factual overlap here is with respect to the presentation – in the design, it is the novelty and aesthetic presentation; in a passing off action, it is the distinctiveness (of the mark) with the attendant association with the owner. To establish infringement (of a design) fraudulent imitation of the article (by the defendant) must be proved.

Likewise, to show passing off, it is necessary for the owner of the mark to establish that the defendant has misrepresented to the public (irrespective of intent) that its goods are that of the plaintiff's; the resultant harm to the plaintiff's reputation is an actionable claim.”

Therefore, the five-judge bench held that “On account of existence of common questions of law and fact between the two causes of action of infringement of a registered design and passing off, therefore to a considerable extent, the evidence of the two causes of action will be common.

In such a situation to avoid multiplicity of proceedings there should take place joinder of the two causes of action of infringement of a registered design and passing off against the same defendant in one suit, otherwise multiplicity of proceedings will result in waste of time, money, and energy of the parties and also of the courts.”

In view of the foregoing, and with regards to the changing landscape; the interpretation of statutes coupled with precedents shall guide designers and stakeholders through the intricate maze of intellectual property rights in the ever-evolving canvas of fashion. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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