Clothing and accessories have been an integral part of human existence. The Biblical story of Adam and Eve picture the first created beings, covering themselves with leaves to safeguard their modesty. During the prehistoric times, the hunter gatherer humans covered themselves with animal skins and the clothing necessity was limited to protection from elements of nature.
There was evidence of clothing in the Indian subcontinent right from the Indus Valley civilization times. Sewing was prevalent in ancient India with evidence of needles and spindle whorls found in the Harappan Sites.[i] In Ancient India, Arthashastra put emphasis on safeguarding knowledge and inventions, and this maybe the earliest evidence of intellectual property law principles in the country.
The clothing needs of mankind changed from basic necessities to comfort wear. As the industry developed, clothes started defining individuality and the need for regulations arose. France was the first country in the world to protect original creative designs. In the 15th century “fabrication of textiles” was granted protection.[ii] In 1793 through the Decree of the National Convention design specific protection was granted.[iii] The Chambre Syndicale de la Haute Parisienne was founded in 1868 by Charles Frederick Worth to provide protection to fashion designers.[iv] The special design laws were enacted in1806 and 1909 in France. UK’s first intellectual property laws were Statute of Monopolies (1624) and Statute of Anne (1710) which was the world’s first Copyright Law, and these laid foundations influencing protection of fashion.
In United States, copyright, trademark, and design patents generally provide protection in the fashion industry. The designers do not enjoy sui generis protection for their creations. The copyright protection for fashion articles is not effective in US due to the concept of separability. Separability being a pre requisite for all utility items, as a whole, utility items don’t get copyright protection. Only design features which can be separated from utilitarian items qualify for copyright protection in the US. This was reiterated in Star Athletica, L.L.C. v. Varsity Brands, Inc.,[v] where it was held by the Supreme Court of United States, that the design in a useful article is eligible for copyright protection only if it can be perceived as a two- or three-dimensional piece of art separate from the useful article and a protectable work either on its own or fixed to a tangible form. Whereas, design patents are granted for a period of 15 years and can provide protection to clothing and fashion accessories. When a fashion product has both functional and decorative value, then applications for both utility and design patents can be applied for.
Trademarks protect fashion branding. In Hermes International v. Rothschild, [vi] the French luxury brand sued Mason Rothschild for trademark infringement of its Birkin bag when, Rothschild created and started selling Non-Fungible Tokens(“NFT”) depicting Hermes Birkin handbags covered in colorful fur. The Federal Jury determined that Rothschild was guilty of trademarks infringement and cybersquatting, proving reach of IP laws into digital fashion. Currently, Rothschild has appealed against the US Federal Court order.
Fashion in the European Union benefits from Community Designs that can be filed through EUIPO or through one of its national offices. They provide legal protection to the appearance of a product, lines, contours, colors, shape, texture and materials. There are two forms of community design rights, the Registered Community Designs, the Unregistered Community Designs. The former provides twenty-five years of protection and the latter provides three years protection against direct copying. The brand identity can be protected by trademarks. The 1996 unitary system of trademark registration guarantees the unitary protection of fashion brands across the EU. In all of the member states of European Union, the copyright protection exists for a period of 70 years after the creator’s death. But the copyright laws have not been harmonized like the unitary trademark registration. The European Patent Convention (EPC) provides a legal framework for the granting of European patents for innovative fashion technology via a single, harmonised procedure before the EPO.
Recent Legal Trends in India
In India, Design Act, 2000, Copyrights Act, 1957, Trademarks Act, 1999, Geographical Indications Act, 1999, primarily govern the fashion industry. The Design’s Act fails to protect digital designs. However, the Concept Note introduced in January 2026, has recommended amendments to the Designs Act, 2000 and seeks to fill this gap. The Note apart from proposing this also seeks to amend Section 15 (2) of the Copyright Act, 1957 to enable copyright protection to unregistered designs for a period of 15 years and a 12-month grace period to register design which will allow designers who showcase their creations in public via exhibitions. The period of protection awarded to a registered design is proposed to “5+5+5” instead of 10 years and upon renewal 5 years, as it is now. This is to enable design owners to renew only those designs that are commercially viable.
New challenges
With the emergence of AI generated designs, there is a clash with human-authorship requirements in Copyright Law. To qualify for protection for a design created by a human using an artificial intelligence, human input in the creation has to be sufficiently proved. Amending Copyright Act and supportive Judicial precedents that shed light on AI created designs is the need of the hour.
Counterfeiting is a multimillion-dollar industry and imitations of well-known brands continue to enter the market at an alarming rate, underscoring the role of IP protection. Where customers encourage counterfeiting to save cost and purchase affordable look alike to replicate luxury brands, the designers are scampering to protect their brands and unique designs. Major fashion brands robustly protect their brands using registered trademarks. In Christian Louboutin Sas vs Nakul Bajaj & Ors,[vii] the luxury shoe brand manufacturer filed a trademark infringement suit against Nakul Bajaj who operated the website www.darveys.com and allegedly sold counterfeit products with Christian Louboutin names as metatags. In this case, the defendants were directed to give the complete details of its sellers who use the platform offered by them and to ensure that the sellers were selling genuine products. The Court directed that the metatags of Christian Louboutin be removed.
Fashion designers in India are increasingly approaching the Courts seeking injunction and award of damages in case of infringement of their designs. In Sabyasachi Calcutta LLP vs. Ankit Keyal, Proprietor Asiana Couture,[viii] the fashion designer filed a suit against the proprietor of Asiana Couture for infringing two of his designs. The lower Court granted an ad interim injunction in favor of the designer. On appeal, the High Court having found the designs to be prima facie identical, the injunction order of the lower court was upheld.
Conclusion
From ancient times to the present, as the fashion industry has grown, the intellectual property laws have also grown and developed. Fashion trends change at breakneck speed and by the time a design is registered, newer trends take over, demanding agile and robust IP tools for protection. Small time designers hardly approach the IP offices for registration and counterfeiting industry have taken over the world majorly supported by the customers themselves. Vigorously seeking multiple IP protection with the available legal mechanisms is the way forward. Brands providing authentic goods at affordable rates would also help curb counterfeits to some extent.
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