Introduction
The rise of fast fashion has dramatically altered the global apparel industry, and created a historic friction between accessibility and protecting intellectual property. The factor driving this change is the rise of “dupes.” Dupes make designer apparel more accessible to more people, but they also raise difficult problems about the limits of intellectual property protection, especially trade dress rights. Trade dress is a sort of intellectual property that protects the complete look and feel of a product, including its packaging. It is an essential area of protection where fashion innovation and protection come together.
The law of protecting trade dress when it comes to rapid fashion knockoffs is more complicated than regular contract and tort law. Not only does it engage the intellectual property protection of fashionable goods, but consumer protection and protection from commercial competition also intertwine. In trade dress disputes, protection is based on the visual impression created by the design, packaging, and general appearance of a product, as opposed to a name or logo serving as a brand identity. This difference is essential in the fashion business, where how well a thing looks might be more important than how well it works.
Legal Foundation of Trade Dress Protection in India
While India, unlike other jurisdictions, lacks a specific statutory framework for trade dress protection, the lack of statutory provisions is offset by what seems to be substantial protection offered by common law remedies and the interpretation of the courts. Trade Marks Act, 1999 does not contain an express definition of trade dress but Section 2(zb) defines trademarks to include, among other things, “shape of goods, their packaging and combination of colours”. A definition so broad as in the act would allow the courts to align their trade dress protection with established principles for trademarks with particular reference to the law of passing off.
The statutory framework can be further supportive of trade dress protection by virtue of other statutory recognition. For example, Section 2(q) of the Trade Marks Act explicitly defines “package” as “any case, box, container, covering, folder, receptacle, vessel, casket, bottle, wrapper, label, band, ticket, reel, frame, capsule, cap, lid, stopper and cork”, and the definition of “mark” in Section 2(m) entails “device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination of them”. These definitions are so wide and inclusive that even without any statutory protection, it provides strong support for trade dress protection.
The Designs Act, 2000 also provides complementary protection of “features of shape, configuration, pattern, ornament or composition of lines or colours applied to any article” where they appeal to and are judged by the eye. But the benefit of design protection requires registration, and is also subject to exceptions from protection for features that are purely functional. This means these components act as gaps that trade dress protection could fill, perhaps through common law remedies.
Essential Elements for Trade Dress Protection
The jurisprudence developed by Indian courts has established three fundamental requirements for trade dress protection: distinctiveness, non-functionality, and likelihood of confusion. The distinctiveness requirement mandates that the trade dress must either be integrally distinctive or they have acquired a subordinate meaning through an widespread commercial use and the consumer recognition. This principle emerged prominently in landmark cases where the courts evaluated whether specific designs had become connected with particular brands in the minds of the consumers.
The ‘Non-Functionality’ doctrine which is borrowed from the jurisprudence of the United States, prevents protection of designs that serve the essential utilitarian purposes. As established in Section 9(3) of the Trade Marks Act, 1999, marks consisting of shapes that provide substantial value to goods or arise from the nature of goods cannot receive trademark protection. This limit makes sure that the trade dress protection doesn’t unfairly limit competition by taking over the practical design features.
The likelihood of confusion standard involves whether the consumers might mistakenly believe that the competing products have similar source of origin because of their identical trade dress elements. Courts use multi-factors tests considering designs of the products, close proximity of the products in the market place, sophistication of the consumers and proof of actual confusion. The analysis gets more complicated in fashion contexts as style aspects could accumulate naturally through seasonal trends and aesthetical preferences.
Judicial Evolution Through Landmark Cases
The Colgate Palmolive Precedent
In Colgate Palmolive Company v. Anchor Health & Beauty Care Pvt. Ltd. (2003) the Delhi High Court laid the keystone of Indian trade dress law. The Court held that a similarity in trade dress is a form of actionable passing off, no matter the distinct name or meaning of the brands. The ruling concluded that trade dress can, in certain circumstances, act as a source identifier and is therefore deserving of a different more distinct kind of protection from that provided to word marks.
In the Colgate case, the Court specifically emphasized that when judging a trade dress, it is more important to consider the overall similarity rather than examining the packaging of products based on their distinct components. The Court acknowledged that Indian consumers may rely more on visual information than on other means of identification (e.g., the word marks) in a context where literacy varies by individual. Therefore, the Court used an analysis which took into account prevailing cultural sensitivities associated with consumer behaviours and steered subsequent decisions dealing with trade dress.
Fashion Industry Applications
Recent litigation in the fashion industry has sharpened trade dress principles with respect to clothing and luxury goods. In the case of Britannia Industries Ltd. v. ITC Ltd. a trade dress dispute, the Madras High Court discussed competing claims over the blue and yellow packaging scheme of biscuits. The court’s analysis was, concerning the colour combination and the overall aspect of the packaging scheme, had acquired secondary meaning such that competitive adoption would be restrained.
The case of Christian Louboutin SAS v. Mr. Pawan Kumar & Ors. established a monumental victory in favour of luxury fashion brands in India in relation to the trade dress protection. The court recognized Louboutin’s signature red sole as a trademark and further noted that international goodwill could establish secondary meaning in India based on the “spillover goodwill”. This case made clear that luxury fashion could establish trade dress based on the recognition of the name alone, in a jurisdiction where it had already not placed itself materially.
Challenges in Fast Fashion Context
The application of trade dress principles to fast fashion copies creates a situation where fast fashion retailers exploit legal gray areas that traditional case law rarely deals with reasonably. Fast fashion owners will argue that their creative work is simply legitimate inspiration and not actionable copying, making it even harder for courts to determine what is aesthetic and what is legal. The speed of fashion cycles also complicates this process, since courts must also determine if convergence of looks and ultimately similarity is simply a natural by-product of a trend, as opposed to a copy.
The Lululemon v. Costco problem is a great example. Luxury athletic wear manufacturer Lululemon alleged that Costco’s Kirkland Signature products infringed Lululemon’s trade dress because the colour schemes and elements were too similar. The case drew attention to challenges regarding proving secondary meaning for very simple design elements respectively, within the marketplace, and often dealing with multiple competitors who might independently use similar aesthetics.
Remedial Framework and Enforcement Mechanisms
Indian law provides multiple options for traders looking to enforce their legal right to protect trade dress. Remedies and enforcement strategies available include civil action through passing off and certain criminal penalties. Civil remedies include injunctive relief, general and special monetary damages, account of profits and destruction of goods subject to confounding trade dress. Criminal penalties for use of false trademarks or counterfeiting are provided for under Section 103 of the Trade Marks Act, 1999, which can result in a term of imprisonment from six months to three years and a fine set at a maximum of two lakh rupees.
Most recently, the jurisprudence of the Supreme Court has added to the effectiveness of enforcement by determining that corporations are treated as “victims” under the Criminal Procedure Code, and thus have standing to file criminal appeals against sellers and distributors of counterfeit products.
Corporations can thus also pursue criminal remedies without needing to prove the monetary damage required for civil remedies under the common law of passing off. This is especially useful for co-operating to combat organized operations to copy brands, high-volume copying operations typically associated with fast fashion. Recent decisions from the Delhi High Court have demonstrated increasingly effective enforcement of trade dress, with hefty damage awards and within it large and comprehensive injunctive relief. For example, in the case of Harley-Davidson in trademark infringement action, the court aggravated the defendant by ordering the destruction of 640 pairs of infringing footwear and awarding ₹5 lakh in damages. In similar cases of counterfeiting, Indian fashion designer Rahul Miisha obtained injunctive relief in a recent case that order the sites selling counterfeit replicas of his handcrafted designs priced much lower than the priced he charged for his original designs.
Contemporary Challenges and Legal Gaps
Although the case law evolves, there are still many confusions and problems in effectively battling fast fashion dupes through trade dress protection. The need for a party to show secondary meaning created a substantial burden and made it more difficult for emerging designers to prove the consumer recognition as they cannot afford sophisticated market surveys. The notable hindrance is most importantly becoming a bothersome for independent fashion designers who tries to compete with the fast fashion corporations who have massive resources and access to international distributions.
The second major issue is that the disconnect between fashion cycles and available legal remedies. Fashion trends consistently evolve with the changing season, whereas legal processes can take years to get resolved. By the time a trial judge issues a judgment, the disputed designs are usually no longer in vogue, limiting the usefulness of any litigation to protect fashion innovation.
Finally, the international nature of fast fashion supply chains makes it difficult to enforce intellectual property rights because infringing fast fashion products may originate from jurisdictions with conflicting intellectual property standards before being imported into yet another jurisdiction without an intellectual property framework.41 Enforcement would therefore require coordinated efforts beyond the purview of a domestic legal system.
Comparative Analysis with International Approaches
The United States provides much more extensive trade dress protection under Section 43(a) of the Lanham Act that treats trade dress infringement and unfair competition separately. In its decision in Two Pesos v. Taco Cabana, the court ruled that inherently distinctive trade dress is protectable without a showing of secondary meaning. This both relieves plaintiffs of evidentiary burden while providing protection for more innovative designs.
The European Union intellectual property law system has different benefits, particularly due to the Community Design system giving protections to original designs automatically and without registration requirement. This offers protections for creative innovations more suitable to the dynamic world of fashion, while providing sufficient protection for the investment in design.
Future Directions and Reform Recommendations
Adaptation of the fast fashion dupe’s context necessitates legislative and judicial modifications to meet the demands of contemporary challenges. Possible reforms could include developing distinct fast-track protocols for proceedings related to fashion trade dress, so that the time between infringement and completion is shortened. Also, there are rational grounds for establishing presumptions of secondary meaning for designs that reach a designated commercial threshold to alleviate evidentiary burdens for bona fide designers of fashion.
This enhanced possibility of international cooperation – such as facilitating swift cross border enforcement and horizontality of trade dress protections across jurisdictions – would contribute to addressing the worldwide scope of the fast fashion supply chain. Digital platforms could also assume a greater and more proactive role with respect to the trade dress infringement of knockoffs through monitoring, supported by efficient take-down procedures to address identified infringement concerns
Conclusion
The challenges of addressing fast fashion duplicates vis-a-vis trade dress protect, illustrates the complex overlap of intellectual property law, commercial competition, and cultural resemblance. While Indian jurisprudence has developed advanced structures of trade dress protection through the creativity of courts and statutory formalism, there are persistent complications that fail to address the distinct realities of modern fast fashion practices.
The journey from an early Colgate Palmolive decision to recent wares that have Protection victory from luxury fashion makes clear that Indian intellectual property law can evolve to meet market realities. However, the gaps between the legal protection and commercial enforcement which will continue to grow, requires constant and continual attention and ensure reform in balancing the need to incentivize innovations while leaving space for competitive marketplaces.
In the end, fixing the problem of trade dress protection falling apart in the quick fashion industry would need a full response that includes strong laws, strict enforcement, and cooperation between countries. The fashion industry is always changing because of new technologies and changes in what customers want. To protect creators who are often called “designers,” legal systems need to change as well. However, they should also respect the fair competition of less creative competitors. The conversation among courts, legislators, and industry stakeholders will ultimately dictate if trade dress protection can navigate the challenges created by the fast fashion revolution while ensuring the precarious balance between innovation and competition required to spur creative industries.
AUTHOR’s information
Moveeka K is a Law Student at Government Law College, Coimbatore (an affiliated college of Tamil Nadu Dr. Ambedkar Law University, Chennai). Moveeka is a Certified Legal Researcher from Manupatra and a Legal Assistant with a Skill India Certificate from NSDC. Moveeka is an aspiring legal writer and has strong interests in Company Law, Corporate Law, Banking (Finance) Law, Constitutional Law and any aspect of Intellectual Property Law. Moveeka enjoys researching and writing on emerging styles of legal writing on current legal issues.
References
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- https://www.ropesgray.com/en/insights/alerts/2025/06/imitation-game-legal-considerations-with-dupes-based-business-models.1
- https://www.ijnrd.org/papers/IJNRD2411231.pdf.1
- https://lexindis.com/wp-content/uploads/2020/11/TRADE-DRESS-PROTECTION.pdf.1