Issued by the Editorial Board, Fashion Law IP Blog.

A fashion designer can spend months developing a garment that takes only a few minutes to describe. A particular cut. An unusual proportion. A recurring silhouette. A way of placing seams. A particular combination of fabric, colour and ornamentation. Perhaps none of these elements, taken alone, is especially remarkable. Together, however, they become recognisable. They become the reason a garment looks like it came from a particular designer rather than another.

This is where intellectual property law encounters one of fashion’s most difficult problems. The commercial value of a fashion design may lie in its overall aesthetic language, while intellectual property law generally protects something more specific. Copyright protects particular works. Design law protects particular visual features applied to an article. Trademark law protects signs that distinguish commercial origin. None of these rights, by itself, necessarily gives a designer ownership over an entire aesthetic vocabulary.

That distinction matters because fashion is built on visual language. Designers borrow, reinterpret, repeat and develop existing forms. At the same time, a designer may spend years developing a recognisable visual identity that competitors can imitate without reproducing one particular protected work.

The question, therefore, is not simply whether fashion deserves intellectual property protection. It is more precise. What, exactly, is the law protecting when the thing that makes a garment valuable is the language of the garment rather than one isolated feature?

The garment is not one legal object

It is tempting to speak about “a fashion design” as though it were a single thing. Legally, it may be several things at once.

Before a garment reaches a customer, there may be sketches, technical drawings, textile prints, embroidery patterns, photographs, labels, logos, prototypes and the finished article. Each may raise a different intellectual property question.

The Copyright Act, 1957 recognises copyright in original artistic works. Its definition of “artistic work” includes paintings, sculptures, drawings, engravings and photographs, as well as works of artistic craftsmanship. The statute does not require an artistic work to possess aesthetic quality merely to fall within that definition.

This is important for fashion because the drawing from which a garment begins can be legally distinct from the garment that eventually reaches the market.

The Delhi High Court confronted this distinction in Rajesh Masrani v Tahiliani Design Pvt Ltd. The dispute concerned creative works developed in connection with garments and accessories, including drawings and textile prints. The Court considered whether these works could qualify as artistic works under the Copyright Act and dealt with the relationship between copyright protection and design protection.

The point is easy to miss, the sketch and the garment are not necessarily the same legal subject matter simply because one led to the other. That becomes particularly important once the creative work enters industrial production.

Copyright protects expression, not the idea of a garment

Copyright begins with a boundary that is fundamental to intellectual property law: the distinction between an idea and its expression.

A designer may have the idea of a sharply exaggerated shoulder, an oversized coat, a particular kind of draping or a collection built around a certain visual concept. Copyright does not ordinarily give ownership over the underlying idea merely because the designer thought of it first.

The Supreme Court’s decision in R.G. Anand v Deluxe Films remains a foundational authority on this distinction. The Court rejected the proposition that copyright can be claimed in an abstract idea, theme or concept and instead focused protection on the expression of that idea.

Applied to fashion, the distinction can become uncomfortable. Suppose a designer develops a collection around oversized, asymmetric garments in muted colours, with exposed seams and layered construction. Another designer later produces garments using similar proportions, muted colours and exposed seams. There may be a strong visual resemblance between the collections. Yet resemblance does not automatically establish infringement.

The legal question is not simply whether the second designer appears to have adopted the first designer’s aesthetic. It is whether a legally protected work or right has been copied or otherwise infringed.

This is one reason why the phrase “owning an aesthetic” is legally misleading. A designer can develop an aesthetic that is commercially valuable and immediately recognisable while still being unable to claim exclusive ownership over every element that contributes to that aesthetic.

Where Design Law enters

The Designs Act, 2000 approaches the problem differently.

Section 2(d) defines a “design” in terms of features of shape, configuration, pattern, ornament or composition of lines or colours applied to an article by an industrial process or means, where those features appeal to and are judged solely by the eye. The definition excludes, among other things, modes or principles of construction and artistic works falling within the Copyright Act. The distinction is significant.

Copyright asks questions about an original artistic work. Design law is concerned with the visual appearance of an article resulting from the application of particular features.

The Designs Act also places its own conditions on protection. Section 4 excludes designs that are not new or original, have already been disclosed to the public, are not significantly distinguishable from known designs or combinations of known designs, or fall within the other statutory exclusions. Section 5 provides for registration of a new or original design not previously published in any country.

A registered design receives a different kind of right from copyright. Section 11 provides protection for ten years from registration, extendable by a further five years. The law therefore creates a deliberate exchange.

A fashion designer who seeks design protection is not receiving the potentially much longer duration of copyright. Instead, the law gives a more limited monopoly over a defined visual design in return for placing that design within the design-registration system.

That limitation is not an accident. It is part of the architecture of the legislation.

The fifty-copy problem

This is where Indian fashion law becomes particularly interesting. Section 15(1) of the Copyright Act provides that copyright does not subsist under the Copyright Act in a design that has been registered under the Designs Act.

Section 15(2) deals with a different situation. Where a design is capable of being registered under the Designs Act but has not been registered, copyright in that design ceases once an article to which the design has been applied has been reproduced more than fifty times by an industrial process.

In other words, an unregistered design cannot necessarily remain protected indefinitely under copyright while being commercially reproduced on a large scale.

The Delhi High Court’s decision in Microfibres Inc v Girdhar & Co is central to understanding this relationship. The Court distinguished the original artistic work from the design derived from it for industrial application. It held that the original artistic work could continue to enjoy copyright protection, while the industrially applied design was subject to the limitations created by Section 15 and the Designs Act.

The Court was concerned with preventing the design regime from becoming meaningless. If a commercially exploited design could simply be characterised as an artistic work and receive the longer copyright term, design registration would lose much of its purpose.

The principle is particularly relevant to fashion because fashion sits directly at the boundary between artistic creation and industrial production.

Fashion law at the point where art becomes merchandise

This produces one of the most important questions in fashion law. When does an artistic work become a design? The answer cannot simply be “when it becomes fashionable.” The law looks instead at the nature of the subject matter and its industrial application.

Microfibres made clear that the original artistic work and the industrial design derived from it can be legally distinguished. The fact that an artistic work has been used as the basis for industrial production does not erase copyright in the original work itself. What changes is the legal position of the design applied to the commercially produced article.

Ritika Pvt Ltd v Biba Apparels Pvt Ltd brought the issue directly into the context of clothing. The plaintiff claimed copyright in drawings and sketches used in the creation of garments. The Delhi High Court considered Section 15(2) and followed the principles established in Microfibres, holding that the relevant unregistered designs could not retain copyright protection after the statutory threshold of industrial reproduction had been crossed.

The case reveals something important about fashion businesses. Commercial success can change the legal character of the problem. A design that exists in a small number of couture pieces may raise a different question from a design reproduced hundreds of times for a ready-to-wear collection. The designer’s creative process may be identical. The commercial scale is not.

The law therefore does not merely look at creativity. It also looks at industrial exploitation.

What about functionality?

Another boundary appears where visual appearance is dictated by function.

The Designs Act expressly excludes modes or principles of construction and things that are in substance mere mechanical devices from the definition of design. This matters because fashion contains both aesthetic and functional decisions.

A pocket may be decorative, functional or both. A fastening mechanism may have a visual character but also perform a mechanical function. The shape of a shoe may contribute to its appearance while also being dictated by comfort, movement or construction.

The law cannot simply transform every attractive functional feature into private property. Otherwise, design protection could become a means of controlling functional solutions rather than protecting visual design.

For fashion, this creates a recurring tension, the feature that makes an object recognisable may sometimes be the same feature that makes it useful.

Make the garment identify the brand

If copyright and design law cannot protect an entire aesthetic, fashion houses have another possibility, which is trademark law.

The Trade Marks Act, 1999 defines a “mark” broadly enough to include devices, brands, names, labels, shapes of goods, packaging and combinations of colours. A trademark, in turn, is concerned with distinguishing the goods or services of one person from those of others.

This changes the legal question. Copyright asks, was a protected work copied? Design law asks, was a protected design applied or imitated? Trademark law asks, among other things, does this sign function as an indicator of commercial origin?

That distinction explains why some aspects of fashion can acquire a form of protection that looks surprisingly close to ownership of appearance.

The red sole associated with Christian Louboutin is a useful example. Litigation concerning the mark demonstrates how a visual feature associated with footwear can become the subject of trade mark disputes and claims concerning goodwill and source identification. But trade mark protection is not simply a substitute for design protection.

A shape, colour or other visual feature cannot be protected merely because a designer likes it. Its legal significance lies in its capacity to function as a mark under the statutory framework. That is a fundamentally different kind of protection.

The law does not protect “style”

This may be the most uncomfortable conclusion for fashion. A designer’s style can be commercially valuable without being a discrete intellectual property right.

There is no general statutory monopoly over “minimalism”, “deconstruction”, “quiet luxury”, “punk”, “romanticism”, “maximalism” or any other broad aesthetic category. Nor should there necessarily be one.

Fashion depends upon shared visual vocabulary. If one designer could own an entire aesthetic, subsequent designers would have little room to reinterpret it. The public domain would shrink, and the difference between inspiration and infringement would become almost impossible to administer. The law therefore protects particular forms of creative expression rather than giving ownership over an entire creative language.

A drawing can be protected as an artistic work. A qualifying design can be registered. A distinctive sign can function as a trade mark. A particular commercial presentation may support a passing-off claim where the legal requirements are established.

But the space between those rights remains large. That space is where style lives.

The limits are part of the system

The difficulty in fashion law is therefore not that intellectual property protects too little or too much in the abstract. It is that fashion compresses several different kinds of creativity into one commercial object.

The same garment may begin as an artistic work, become an industrial design, carry a trade mark and acquire commercial goodwill. Each legal regime sees something different. That fragmentation can be frustrating for designers. They do not experience a collection as a collection of statutory categories. They experience it as a coherent creative language developed over time.

The law, however, cannot protect that language as a whole without creating a monopoly over ideas, aesthetics and visual vocabulary that other designers must remain free to use. Its answer is therefore more limited: protect identifiable expression, qualifying designs and source-identifying marks, while leaving broader style available for further creation.

For designers, this makes IP strategy less about asking whether “the fashion” is protected and more about identifying which parts of the fashion have acquired a protectable legal form. And that may be the most revealing thing about intellectual property in fashion. The law can protect elements of a designer’s language. It cannot necessarily protect the language itself.

A sketch may be protected. A registered design may be protected. A trade mark may distinguish the brand. A particular form of commercial identity may receive protection where the legal requirements are satisfied. But the aesthetic that connects them, the proportions, references, methods, sensibility and visual vocabulary, may remain outside any single exclusive right. That is not an accident at the edge of fashion law. It is one of the consequences of how intellectual property is designed to work.

If the law can protect the drawing, the design and the mark, but not the designer’s entire visual language, the harder question remains, where should the law draw the line between protecting creativity and leaving fashion free to evolve?

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References

Legislations

1. The Copyright Act 1957 (India), ss 2(c), 13, 14, 15 and 16.

2. The Designs Act 2000 (India), ss 2(d), 4, 5, 11, 19 and 22.

3. The Designs Rules 2001 (India), r 11.

4. The Trade Marks Act 1999 (India), ss 2(zb), 9, 11, 18 and 29.

Cases

1. R G Anand v Deluxe Films (1978) 4 SCC 118.

2. Rajesh Masrani v Tahiliani Design Pvt Ltd (2009) 39 PTC 21 (Del).

3. Microfibres Inc v Girdhar & Co 2009 SCC OnLine Del 1647, (2009) 40 PTC 519 (Del).

4. Bharat Glass Tube Ltd v Gopal Glass Works Ltd (2008) 37 PTC 1 (SC).

5. Ritika Pvt Ltd v Biba Apparels Pvt Ltd (2016) 230 DLT 109.

6. Christian Louboutin SAS v Ashish Bansal 2018:DHC:4666.

Secondary Sources

1. World Intellectual Property Organization, Intellectual Property in the Fashion Industry: From Conception to Commercialization (WIPO 2023).

2. World Intellectual Property Organization, ‘Does Copyright Protect Fashion?’ WIPO Magazine (March 2014).

3. World Intellectual Property Organization, ‘Industrial Designs’.

4.John Zarocostas, ‘The Role of IP Rights in the Fashion Business: A US Perspective’ WIPO Magazine (April 2018).