This article is co-authored by Karnika Gaira and Mahi Agrawal, third-year B.A. LL.B. (Hon’s) students at Hidayatullah National Law University, Raipur.

In March this year, the European Union (‘EU’) quietly made history for the fashion world. It passed a sweeping new design law that, for the first time, openly welcomes clothing that exists only on a screen. Under this reform, a “virtual jacket” in a metaverse store could be registered and protected in the same way as a real coat hanging in a boutique in Paris. 

It sounds futuristic, but for anyone who has paid attention to how fashion is moving online, this was long overdue. Brands have been selling augmented reality (‘AR’) garments that we “wear” in social media posts, luxury skins for video game avatars, and Non-Fungible Token (‘NFT’) dresses that never touch fabric. Digital fashion is no longer an experimental niche; it is a thriving industry.  While the EU has caught up to that reality, India is still deciding whether a dress that only exists in pixels can be called a “design” at all. Say, for instance, the iconic Ra.One and G.One costumes (from the Bollywood movie “Ra.One”) were recreated as digital outfits in another film, game, or metaverse. Could the makers actually sue for Intellectual Property (‘IP’) infringement in India? And more importantly, do our laws even recognise purely virtual designs as something worth protecting?

The Physical Bias of the Indian Designs Act

The trouble starts with the terminology used in the Indian Designs Act, 2000(‘Act’), which defines a “design” as the features of shape, configuration, pattern, ornament, or composition of lines or colours applied to an “article” by an industrial process. An “article” here means an article of manufacture, which is something tangible and capable of being sold on its own. That works for furniture, jewellery, or handbags, but leaves a big question mark over AR dresses, gaming skins, and metaverse accessories, which exist solely as data. 

Indian law has historically treated “articles” as tangible things. This makes it difficult to see how a design floating in virtual space could qualify. The Patent Office has, in fact, refused registrations for non-physical designs in the past. One notable example was a graphical user interface (‘GUI’) that was rejected because it was not an article of manufacture and had no industrial process behind it. In the same way, a digital jacket may be beautifully rendered, but in the Act’s current language, it is not clear that it belongs in the registry at all. 

The Act also excludes recognised “artistic works” under the Copyright Act from design protection. That might sound harmless, but many virtual garments are exactly that, pieces of digital art, patterns, and textures designed in graphic software. If they are treated as purely artistic, they fall outside design protection. 

There have been small moves towards recognising digital graphics in India. The Designs Rules were updated to include Locarno Class 14-04 for “Screen Displays and Icons” and Class 32 for “Graphic symbols, logos, ornamentation.” However, these changes stop short in addressing whether a digital dress or an avatar skin is a protectable design in itself. 

The Act also runs into other practical barriers. It requires the design to be applied to an article in a way that appeals to the eye, usually meaning a physical product you can hold or wear. If the “article” is an on-screen avatar, does that count? The GUI case suggests it may not. Therein, the design was only visible when the device was turned on, which the office said meant that there was no enduring article. The industrial process requirement poses another hurdle. Is writing code or rendering a 3D model the same as manufacturing? In the software era, the idea of “industrial application” needs redefinition. Until then, however, the law remains silent.  

Finally, even if a virtual fashion design ticks all those boxes, it still must be new. Anything that has been “published” before the filing date cannot be registered under the Act. In the physical world, showing a dress at a fashion show destroys novelty. However, in the metaverse, it is murkier. A core legal question arises: does displaying a digital gown in an online game’s private or controlled environment constitute “publication to the public” under the Act? If the display is limited to a closed beta test or a members-only virtual space, can it still destroy novelty? Similarly, does minting a design as an NFT constitute prior publication? The Act does not clarify whether visibility in virtual environments qualifies as public disclosure, nor does it address whether blockchain timestamps or NFT minting records serve as evidence of prior publication. Without clarification, designers risk losing protection before they even think about filing.

How Other Jurisdictions are Dressing for the Digital Age

While India debates these questions, other jurisdictions are moving ahead in different ways. In the United States (‘US’), Hermès v. Rothschild (the MetaBirkins case)made it clear that selling NFTs that mimic iconic fashion items amounts to trademark infringement, and Nike v. StockX showed that even claims of “authenticity” in NFT markets do not excuse unlicensed use of a brand’s designs. Together, these rulings affirm a simple principle: whether tangible or virtual, artistic work and brand identity are the fruit of creators’ labour, and their unauthorised reproduction, be it on a factory floor, a video game server, or a blockchain, cannot be treated as harmless mimicry. 

The game Second Life ® has been at the centre of multiple IP infringement disputes. These have ranged from allegedly copied virtual art galleries to unauthorised replicas of real-world products on the virtual platform, with US courts consistently holding that theft of creativity in digital spaces is still theft. The copying of virtual intimacy products in the game further underscored that even niche virtual goods deserve protection from knockoffs. Likewise, in ESS Entertainment 2000 v. Rockstar Games, the depiction of a nightclub resembling the real “Play Pen” (the name of an actual East Los Angeles strip club) was found capable of raising trademark issues, reaffirming that digital imitation can cause tangible reputational and commercial harm.

The EU’s new law is perhaps the most striking development in this area. In March 2025, the EU overhauled its design regulation to explicitly include products without physical embodiment. It now states that a product is protectable irrespective of its tangibility, and registration can be based on animated or digital files like MP4s rather than static images. This is a game-changer for virtual fashion, as designers can now register an animated NFT dress just as they would a silk gown, and enforce their rights against anyone copying or distributing it online. The EU also updated its enforcement provisions to address digital piracy, including 3D printing based on stolen designs. Furthermore, IP Australia is also on the road to amend its existing IP laws to adapt to the progressive virtual fashion. India’s gaming market size, AR/VR adoption rates, or Indian fashion brands metaverse initiatives (e.g., Kalki Fashion’s NFT collections). This establishes why India can’t afford to lag behind.

In the UK, the changes have been slower but not absent. Post Brexit, the UK Intellectual Property Office has issued guidance for trademarks in virtual goods, classifying them under Class 9 as digital content. Major brands have filed marks for “virtual clothing and accessories” to secure their metaverse offerings. The UK’s Registered Designs Act still technically requires an article, but the office opened a public consultation in 2022 on how design law should apply in digital environments, including gaming avatars. The UK High Court has also recognized digital assets as property, going so far as to freeze stolen NFTs through injunctions.

Taken together, the U.S. seems to be the torchbearer in addressing IP infringements in virtual fashion, while the EU’s new framework paves a more structural path by explicitly protecting intangible designs. Australia is in the process of amending its existing IP laws, while the UK, though slower, is gradually adapting its laws and institutions to the realities of digital commerce. For India, which is still grappling with how existing IP statutes apply to virtual assets, these developments offer both caution and inspiration. The lesson is clear: if creativity in the metaverse is to flourish, legal systems must evolve swiftly to protect designers without eliminating innovation. 

Stitching a Future for Virtual Fashion in India

For India to bring AR garments, gaming skins, and metaverse couture within the scope of intellectual property law, reforms to the Act are essential. Four concrete moves could make this possible.

Firstly, the definition of “article” in Section 2(a) needs to be expanded. Currently, Section 2(a) defines an “article” as “any article of manufacture and any substance, artificial, or partly artificial and partly natural, and includes any part of an article capable of being made and sold separately.” This assumes tangibility and physical manufacture. Courts have interpreted this to mean that designs must be applied to a physical substance. To include virtual fashion, Section 2(a) could be amended to explicitly cover “articles whether physical or digital, including those perceptible through electronic display or virtual environments.” This mirrors the EU’s 2025 amendment (Article 2.4 of the Directive), which recognises non-physical products as registrable designs. 

Secondly, the requirement of “application by an industrial process” in Section 2(d) needs to be clarified. Section 2(d) defines “design” as the features of shape, pattern, ornament, etc., “applied to an article by any industrial process.” The Indian Patent Office has relied on this definition to reject registrations for GUIs on the ground that software coding is not an industrial process. Therefore, it should be clarified, whether through law or the Rules, that digital creation processes, including coding, rendering, and 3D modelling, qualify as industrial processes, with the Designs Act protecting the visual representation while the underlying source code continues to be covered by copyright. This would prevent the artificial exclusion of AR fashion simply because it is manufactured in pixels, not textiles.

Thirdly, the scope of registrability under the Design Rules, 2001 needs to be reformed. The 2021 amendment already adopted Locarno Class 14-04 (Screen Displays, Icons) and Class 32 (Graphic Symbols). However, these are narrow and do not reflect the needs of fashion designers. The Rules could explicitly extend Class 14 to cover “virtual garments, avatar skins, and digital wearables.” This would provide administrative clarity without waiting for a statutory overhaul. 

Fourthly, interpretive guidance needs to be provided to resolve overlap with copyright laws. The proviso to Section 2(d) of the Act excludes “artistic works” under Section 2(c) of the Copyright Act, 1957. As seen in Microfibers Inc. v. Girdhar & Co. (2009), courts have used this to deny dual protection. For virtual fashion, this exclusion can leave designers stranded, as digital dresses are often both artistic works and applied designs. The Controller General could issue guidance stating that a digital design intended for industrial or commercial application in a virtual environment is registrable under the Act, notwithstanding its artistic character. 

Finally, while making statutory changes in the Act to extend protection to purely digital fashion, parallel reforms can also be pursued through existing IP frameworks. Most importantly, the trademark law could be clarified to treat virtual goods as valid “use in commerce” under the Trademarks Act, 1999, particularly in Classes 9, 35, and 41, aligning with European Union Intellectual Property Office and Intellectual Property Office of the United Kingdom practice so that brands can stop unauthorised metaverse use of their marks. 

Enforcement in the Metaverse: New Challenges, New Mechanisms

Even if India amends the Designs Act to protect virtual fashion, enforcement will present distinct challenges. Courts and regulators will need to address at least three critical issues. First, jurisdiction over anonymous or pseudonymous metaverse users remains unclear, as infringers operating under avatars or wallet addresses may be impossible to identify or serve without cooperation from platform operators. Second, takedown mechanisms on NFT marketplaces and blockchain-based platforms differ fundamentally from traditional e-commerce, requiring new protocols for reporting infringement, freezing listings, and preventing re-minting of stolen designs. Third, proving infringement of dynamic or animated designs raises evidentiary challenges, as a virtual garment may change appearance based on user interaction, lighting, or platform rendering, making it difficult to establish substantial similarity through static screenshots alone.

Addressing these issues will require not only clearer legislative frameworks but also updated procedural mechanisms, defined accountability standards for digital platforms, and the possible establishment of specialized IP tribunals equipped to handle digital evidence and decentralized forms of commerce.

Conclusion 

Virtual fashion is no longer science fiction, it has become a booming part of how we shop, play, and express ourselves online. Yet, India’s Designs Act, written for the age of textiles and tangible goods, struggles to keep up. By widening the definition of “article,” recognising digital processes as industrial, updating the Design Rules, and learning from best global practices in copyright and trademark law, India can close this gap. Together, these steps would not just modernise the Designs Act but also create a flexible IP shield where design, copyright, and trademark protection work hand in hand, ensuring that our law is ready for the runaway of the metaverse.