Do the Proposals Give Designers and Independent Creators Real Protection Against Copying?
1. INTRODUCTION
A dress is an awkward object for intellectual property law. It carries creative work, yet it is also an industrial product, made in numbers and replaced every season. In one Delhi High Court suit, the plaintiff pleaded: “Fashion products have a short life.” A copying dispute decided years later may matter little.
India protects fashion designs mainly through two statutes. The Designs Act, 2000 gives registered designs a limited monopoly, while the Copyright Act, 1957 protects original artistic works automatically but, through Section 15, withdraws that protection once a work is industrially reproduced. In January 2026 the Department for Promotion of Industry and Internal Trade (DPIIT) released a Concept Note proposing changes to this framework.
Terminology matters here. The Concept Note is a consultation document, not a Bill or an Act, and it describes its proposals as points “to be fleshed out further”. One proposal would amend the Copyright Act rather than the Designs Act. This article uses “proposed reforms” for the package. Its question is narrow: would these proposals meaningfully improve protection for fashion designers, particularly independent ones, against copying and commercial exploitation?
2. CURRENT LEGAL FRAMEWORK FOR FASHION DESIGN PROTECTION
2.1 Registration under the Designs Act, 2000
The Act protects only visual features: the “shape, configuration, pattern, ornament or composition of lines or colours” that appeals to the eye in the finished article and is applied by an industrial process. It excludes mechanical constructions, trade marks and “artistic works” under the Copyright Act. A design can be registered only if it is new or original, has not been disclosed to the public anywhere before the filing date, and is significantly distinguishable from known designs.
The registered proprietor gets “copyright” in the Act’s narrow sense: the exclusive right to apply the design to articles in the registered class, for ten years, extendable once by five. The official fee is ₹1,000 for natural persons, startups and small entities and ₹4,000 for others. Copying is called “piracy”: applying the design, or a “fraudulent or obvious imitation” of it, to an article for sale. The remedy is either a sum of up to ₹25,000 per contravention (capped at ₹50,000 per design), or a suit for damages and an injunction in a court not below a District Judge.
2.2 Copyright and Section 15 of the Copyright Act
Fashion sketches, prints and embroidery patterns can be artistic works. Copyright arises without registration and runs for the author’s life plus sixty years. Section 15 then limits this for designs. Under Section 15(1), copyright does not subsist in a design registered under the Designs Act. Under Section 15(2), copyright in a design that could have been registered, but was not, ceases once articles bearing it have been reproduced more than fifty times by an industrial process by the owner or a licensee.
In Microfibres, the Delhi High Court’s Division Bench held that original artwork keeps full copyright, but a design derived from it for industrial use is protected only if registered. The Supreme Court has since adopted this approach.
3. THE PRACTICAL PROBLEM FOR FASHION DESIGNERS
Three features of the framework fit fashion badly.
Timing : Section 4(b) treats any public disclosure before filing as fatal to registration. Fashion works the other way round: collections are shown on runways, posted online and previewed to buyers first. Bharti observes that copyists follow fashion shows and images spread within seconds. Relief is narrow. Section 21 covers exhibitions notified by the Central Government, with prior notice and an application within six months, and Section 16 excuses a “first and confidential order” for a new textile design. Neither fits a runway show or a social media launch.
The registration cliff : An unregistered design gets nothing under the Designs Act, and copyright ends after fifty industrial reproductions. A commercially successful designer who disclosed the design before registering may end up with neither right: registration is barred by prior disclosure and copyright is lost by scale. Bharti calls such a design a “free” design. The gap opens just when copying becomes most tempting.
Remedies and fit : The fixed sum under Section 22 is small, and if the defendant pleads a ground for cancellation, the suit moves to the High Court, adding a stage for a small creator. Bharti also argues that a garment stitched directly, without a prior drawing, may not be a design “applied to” an article at all, because the two cannot be separated.
4. RELEVANT JUDICIAL PRECEDENTS
Microfibres concerned unregistered floral designs on upholstery fabric, industrially produced more than fifty times. The court treated the artwork and the derived design as different things and held that the design lost copyright once the fifty-article limit was crossed, reasoning that commercial design deserves shorter protection than pure art. It is the source of the “fifty article” rule that now governs fashion prints and patterns.
Rajesh Masrani v Tahiliani Design Pvt Ltd shows the other side. According to Bharti, the couture line had been replicated only about twenty times. The Division Bench held that the works were artistic works and that Section 15(2) was not triggered, so copyright continued. The count decides the outcome, and small-run work is safer under copyright.
Ritika Pvt Ltd v Biba Apparels Pvt Ltd shows the wrong side of that line. Ritika, which sells under the RITU KUMAR brand, sued over copied prints and garments. Its dresses had been made in more than fifty pieces and the designs were unregistered. Bound by Microfibres, Justice Valmiki Mehta dismissed the suit as barred by Section 15(2), and the trade secret claim failed because it rested on the same designs. Bharti criticises his remark that a print lifted unchanged onto a rival’s dress might raise a different question.
Cryogas Equipment Pvt Ltd v Inox India Ltd is not a fashion case; it concerned engineering drawings for cryogenic trailers. It is, however, the Supreme Court’s main pronouncement on Section 15(2). The Court held that an original artistic work does not lose copyright merely because a design derived from it is industrially applied, and that such a derived design is protected only if registered. Its two-step inquiry asks whether the work is a pure artistic work or an industrially applied design and, if the latter, whether it passes the “functional utility” test.
5. THE PROPOSED 2026 REFORMS
Status : The Concept Note invited stakeholder comments until late February 2026. Commentary from mid-2026 still treats them as at the consultation stage and not enforceable law. No Bill based on the note appears to have been introduced as of September 2026, so present law is unchanged.
Proposals : The Note cites 12,160 design filings in 2024, up 43.2%, and names fashion and clothing among the sectors driving growth. The proposals most relevant to designers are:
* Grace period. A blanket 12-month grace period for pre-filing disclosure, however made, going well beyond the narrow exhibition rule in Section 21.
* Deferred publication. Publication of a registered design could be deferred for up to 30 months on request, with an “innocent infringer” defence limiting damages before publication or notice.
* Statutory damages. For wilful infringement, courts could award damages up to ₹50 lakh for a first instance, with a prescribed minimum and higher bands for repeat offenders.
* Section 15(2). The Copyright Act could be amended so that registrable but unregistered designs keep copyright for up to 15 years instead of losing it after fifty articles.
* Other changes. A 5+5+5 year term (still fifteen years in total), several designs per application within a class, divisional applications, relief for missed deadlines, virtual designs, and accession to the Hague Agreement and the Riyadh Design Law Treaty.
6. WILL THE REFORMS ACTUALLY HELP FASHION DESIGNERS?
6.1 Copying and enforcement
Statutory damages are the most direct response to copying. The Note reasons that actual loss is hard to prove and a predictable sum raises the cost of infringement. For a small designer that is a real benefit, but the remedy covers only wilful infringement, the minimum is left to be prescribed, and the Note says nothing about the speed of proceedings, interim injunctions or online sellers. Fast fashion copies appear within days; a remedy that arrives years later deters less.
6.2 Independent designers, cost and time
For smaller creators the grace period is arguably the most useful proposal. It would let a designer show a collection, test the market and register afterwards, and the Note itself says it would help startups, first-time entrepreneurs and individuals unaware of novelty rules. Multiple-design filing and relief for missed deadlines would also cut cost and risk. The limits are visible. The Note does not propose lower fees, and multiple filing works only within one class, so a collection spanning garments and jewellery would still need separate applications.
Deferred publication cuts both ways. It could keep an unreleased collection secret, but a copyist who did not know of the registration would escape damages for the period before publication or notice. SpicyIP adds that printed or woven textile goods are already exempt from the marking requirement, so buyers may have no notice of a registered design. A designer may therefore have to choose between secrecy and full remedies.
6.3 Unregistered designs and the copyright–design overlap
This is where the proposals could change fashion practice most. Under the Section 15(2) proposal, a designer in the position of Ritika, holding an unregistered design produced in volume, would keep copyright for up to fifteen years instead of none. That would soften the registration cliff without forcing every designer to file for every design. By comparison, the European Union protects unregistered designs for three years, and only against copying.
There are caveats. The Note only proposes to “consider” the change and does not say when the fifteen years begin. It does not discuss Cryogas, and courts would still have to decide what is “registrable” using tests such as functional utility. SpicyIP argues that the Note underestimates how different the two regimes are and weakens the channelling effect of Section 15(2).
6.4 Digital and evolving forms of design
The virtual-designs proposal would allow protection “independent of any physical carrier”, such as icons, animations and augmented-reality interfaces. The Note does not mention digital garments or avatar wear, so whether they would be covered depends on the final drafting. For physical fashion, this proposal changes little.
7. GAPS THAT MAY REMAIN
Several fashion-specific problems appear untouched. First, the Note updates “article” and “design” for virtual products but is silent on the physical-garment problem Bharti identifies. Second, fees and examination time are unaddressed; SpicyIP reports an average grant time of 135 days in 2025, a long wait for a seasonal product, though the grace period eases this. Third, the Note proposes nothing on interim relief, online marketplaces or the court-level limits in Section 22. Fourth, deferred publication combined with the textile marking exemption leaves a notice gap. Finally, the Section 15(2) change needs a separate Copyright Act amendment whose drafting is unknown.
8. CONCLUSION
The proposals would improve protection in some respects and leave it unchanged in others. The strongest gains are the 12-month grace period and the Section 15(2) proposal, which target the two problems the case law shows most clearly: disclosure before registration, and loss of copyright after fifty articles. Statutory damages would add deterrence. Protection would nonetheless remain largely registration-centred, and deferred publication could dilute remedies.Because the Concept Note is not yet a Bill, its real effect depends on the final text, on a parallel Copyright Act amendment, and on the Designs Office’s ability to handle rising filings. Until then the law remains as Microfibres and Ritika left it: a fashion design that is not registered in time is unlikely to keep protection once it succeeds commercially.
THIS ARTICLE IS WRITTEN BY NIMISHA JHA FROM UNIVERSITY OF PETROLEUM AND ENERGY STUDIES
REFERENCES :
Ritika Pvt Ltd v Biba Apparels Pvt Ltd CS(OS) No 182/2011 (Del HC, 23 March 2016) 2016: DHC:2492, para 4 (reproducing para 16 of the plaint) https://delhihighcourt.nic.in/app/case_number_pdf/2016:DHC:2492/VJM23032016S1822011.pdf
DPIIT, Concept Note: Proposed Amendment to the Designs Act, 2000 (January 2026) https://www.dpiit.gov.in/static/uploads/2026/01/791a71ebde47d93b67560f7394be2fec.pdf; Press Information Bureau, Ministry of Commerce and Industry, ‘DPIIT Proposes Amendments to Designs Act to Align with Global Best Practices’ (Release ID 2219951, 29 January 2026) https://www.pib.gov.in/PressReleasePage.aspx?PRID=2219951.
DPIIT, Concept Note, 4 (proposals “to be fleshed out further”) and 6–7 (proposal to “consider amending Section 15(2) of the Copyright Act, 1957”); Kan & Krishme, ‘India’s Proposed Design Law Reforms: Key Amendments to the Designs Act, 2000’ (2 June 2026) https://kankrishme.com/indias-proposed-design-law-reforms-key-amendments-to-the-designs-act-2000/ (proposals at consultation stage, not enforceable law).
Designs Act 2000 (Act 16 of 2000) s 2(d). Official text: https://ipindia.gov.in/the-designs-act-2000. The definition is also reproduced in Cryogas Equipment Pvt Ltd v Inox India Ltd 2025 INSC 483 (SC, 15 April 2025), para 12.
Designs Act 2000 ss 2(g), 4 and 5 (a registered design takes the date of the application: s 5(6)).
Designs Act 2000 ss 2(c) and 11(1)–(2).
Designs Rules 2001, First Schedule, as substituted by the Designs (Amendment) Rules 2021 (in force 25 January 2021); see Intepat, ‘Design Registration Fees in India: Entity Category Guide’ (15 April 2026) https://www.intepat.com/blog/industrial-design-e-filing-fee-structure-in-india and ‘India’s Design (Amendment) Rules 2021’ Asia IP https://asiaiplaw.com/section/news-analysis/indias-design-amendment-rules-2021. The fee is charged per design per class; the reduced fee requires proof of eligible status.
Designs Act 2000 s 22(1)–(2).
Copyright Act 1957, ss 2(c) and 13(1)(a); Sunanda Bharti, ‘Legal Protection of Fashion Design in Apparels in India: A Dilemma under the Copyright and Design Law’ (2016) 3 Delhi University Journal of the Humanities and the Social Sciences 139, 141; Microfibres Inc v Girdhar & Co 2009 (40) PTC 519 (Del) : 2009 SCC OnLine Del 1647 (Division Bench), para 32 (life of the author plus sixty years), reproduced in Ritika, para 14.
Copyright Act 1957, s 15(1)–(2), reproduced in Ritika, para 6, and Cryogas, para 15.
Microfibres (Division Bench), paras 35–38 and 45–46, as reproduced in Ritika, para 14. The single-judge decision is Microfibres Inc v Girdhar & Co 2006 (32) PTC 157 (Del).
Cryogas, paras 28–29 and 56–60. Copy hosted at https://spicyip.com/wp-content/uploads/2025/04/Cryogas-Equipment-Private-Limited-versus-Inox-India-Limited-Supreme-Court.pdf
Bharti, 145.
Designs Act 2000 ss 16 and 21.
Bharti, 147.
Designs Act 2000 s 22(2)–(4).
Bharti, 141–142 and 148–149.
Microfibres (Division Bench), paras 30–32, 35–38, 40 and 45–46. The facts (floral designs on upholstery fabric, unregistered, applied more than fifty times) are described in Rajesh Masrani v Tahiliani Design Pvt Ltd 2009 (39) PTC 21 (Del), paras 27–28, as reproduced in Ritika, para 21.
Rajesh Masrani v Tahiliani Design Pvt Ltd 2009 (39) PTC 21 (Del) (Division Bench) (FAO(OS) No 393/2008), as described in Bharti, 149–151, and Ritika, paras 21–23.
Ritika, paras 6–9, 14–16 and 27–28.
Ritika, para 26; Bharti, 151–153.
Cryogas, paras 55–60. The Court also described the functional utility test at paras 30–39.
DPIIT, Concept Note; Bharathwaj Ramakrishnan, ‘Design Law Reforms: Searching for Justifications’ SpicyIP (7 February 2026) https://spicyip.com/2026/02/design-law-reforms-searching-for-justifications.html (comments invited until 22 February 2026); ‘Proposed Amendments to the Designs Act 2000’ (Anand & Anand, 3 February 2026) https://www.anandandanand.com/news-insights/proposed-reforms-to-indias-design-protection-framework/ (comments by 23 February 2026); Kan & Krishme (2 June 2026).
DPIIT, Concept Note, 3, citing WIPO, World Intellectual Property Indicators 2025.
DPIIT, Concept Note, 7; compare Designs Act 2000 s 21.
DPIIT, Concept Note, 7–9; compare Designs Act 2000 s 7.
DPIIT, Concept Note, 9.
DPIIT, Concept Note, 6–7; compare Copyright Act 1957, s 15(2).
DPIIT, Concept Note, 4–6 (virtual designs) and 9–11 (term, multiple designs, divisional applications, Hague Agreement, Riyadh Design Law Treaty, time relief).
DPIIT, Concept Note, 9.
DPIIT, Concept Note, 9. No proposal on these points appears in the document.
DPIIT, Concept Note, 7.
DPIIT, Concept Note, 10–11.
DPIIT, Concept Note, 8–9 (innocent infringer defence); Ramakrishnan, ‘Design Law Reforms’.
Ramakrishnan, ‘Design Law Reforms’; Designs Rules 2001, r 26 (textile goods with printed or woven designs, other than handkerchiefs, need not be marked); Designs Act 2000 s 15(1)(b) (consequence of failing to mark). See also ‘Design Marking in India: Essential or Avoidable?’ (Mondaq, 2 September 2021) https://www.mondaq.com/india/trademark/1108074/design-marking-in-india-essential-or-avoidable
Council Regulation (EC) No 6/2002 on Community designs, arts 11(1) and 19(2), now codified as Regulation (EU) 2026/715 (see EUIPO, ‘FAQ: Designs – Unregistered EU designs’ https://www.euipo.europa.eu/en/help-centre/design/faq-unregistered-community-designs); Schönherr, ‘Unregistered community designs: a secret weapon in design protection?’ (30 August 2021) https://www.schoenherr.eu/content/unregistered-community-designs-a-secret-weapon-in-design-protection
DPIIT, Concept Note, 6–7.
Ramakrishnan, ‘Design Law Reforms’; Cryogas, para 60.
DPIIT, Concept Note, 4–6.
Bharti, 148–149; DPIIT, Concept Note, 5–6.
Ramakrishnan, ‘Design Law Reforms’ (citing Indian Patent Office reports; original figures not independently checked).
Kan & Krishme (2 June 2026) (institutional readiness of the Designs Office); DPIIT, Concept Note, 3–4.
