India

Under the Trade Marks Act, 1999, a trademark is any sign capable of graphical representation that distinguishes the goods or services of one brand from another. The definition is inclusive, allowing protection not only for names and logos but also for shapes, packaging, colour combinations, patterns, sounds, and other distinctive brand elements. This breadth is particularly relevant for the fashion industry, where identity is often expressed through visual, spatial and sensory cues rather than words alone.

As a result, Indian trademark law accommodates a wide range of non-traditional trademarks — such as three-dimensional product shapes, surface patterns, position marks, sound marks, and even store layouts. Until recently, however, olfactory branding remained outside the scope of protection. This position shifted in late 2025, when the Trade Marks Registry accepted for publication a smell mark described as a “floral fragrance/smell reminiscent of roses as applied to tyres”, signalling a growing openness to sensory branding. The requirements of graphical representation were met through submission of a vector diagram in seven-dimensional space wherein each dimension defined and quantified one of the seven fundamental smells, namely, floral, fruity, woody, nutty, pungent, sweet and minty.

For fashion brands, the key takeaway is that protection increasingly hinges on distinctiveness and consumer association, rather than form alone. Non-traditional marks face a higher evidentiary threshold, often requiring extensive proof of use and recognition. Indian courts have already shown a willingness to protect such identifiers in the fashion context, including Christian Louboutin’s red sole (position mark), Levi’s arcuate stitching pattern, Louis Vuitton toile pattern, Hermès’ single-letter “H”, and most recently, the shape of the iconic Birkin bag. In fact, all of these have been accorded the strongest level of protection through recognition as well-known trademarks.

It is vital to know that India’s trademark regime is grounded in common law principles, meaning rights accrue through use. Registration is not mandatory, but it offers clear advantages: it provides prima facie proof of ownership and enables infringement actions alongside passing-off claims. For fashion businesses operating in fast-moving markets, early and thoughtful brand protection can be critical in preserving exclusivity and market position. However, a mark must be used for the relevant goods and services within the first five years of registration, and its use must not be discontinued for more than five consecutive years in order to avoid revocation actions for non-use.

Further, fashion brands must also navigate product labelling regulations. The Legal Metrology (Packaged Commodities) Rules, 2011 mandate disclosures such as manufacturer details, product description, quantity, country of origin, and maximum retail price (MRP). Since 1 January 2023, these requirements have been extended to loose or unpackaged garments and hosiery, reinforcing compliance obligations across both mass-market and luxury segments.

Together, trademark strategy and regulatory compliance form an essential part of building transparent, credible, and legally resilient fashion brands in India.

Design protection is important in India’s fashion industry, where visual appeal strongly influences consumer choice. Design registration helps safeguard distinctive aesthetics in an “inspired by” market by granting exclusive rights over the visual features of a product, thereby supporting brand value. Under the Designs Act, 2000, a design is protected as a feature of shape, configuration, pattern, ornament, or composition of lines or colours applied to an article. India has also signed the Riyadh Design Law Treaty (November 2024), signalling a move towards harmonised and more flexible design protection frameworks.

A Concept Note outlining proposed amendments to India’s design statute, was released on 23 January 2026, and, among other changes, it also contemplates the introduction of unregistered design rights under Indian law. For the fashion industry, where designs are seasonal, rapidly iterated, and not always registered, such a shift would be very meaningful.

An overlap can arise between design and trademark law in relation to product shapes. Non-functional shapes may qualify for trademark protection, although this requires strong evidence of acquired distinctiveness through use. Design protection, by contrast, is based on novelty alone and is faster to obtain, making it particularly suitable for fashion products with strong visual identity. Registered designs are protected for 10 years, extendable by five years, during which the proprietor can enforce exclusive rights under the Designs Act. However, concurrent protection under both statutes is not possible.

In Crocs Inc. USA v. Bata India Ltd. (MANU/DE/0309/2019), the Supreme Court of India affirmed that, in appropriate cases, if a design registration has expired, a design owner may pursue a passing-off action based on the product’s overall appearance and acquired secondary meaning. Hence, the court recognised that a product’s appearance can function as a source identifier and attract common law protection.

Copyright is another important form of protection in the fashion and jewellery industry, although dual protection under copyright and design law is not permitted in India. While copyright registration is not mandatory, it is advisable, as registration serves as prima facie evidence of ownership. Copyright subsists automatically upon the creation of an original work, and in the case of artistic works, lasts for the life of the author plus 60 years.

If a creation is protected as a design under the Designs Act, 2000, copyright is excluded under section 15(1) of the Copyright Act, 1957. Conversely, artistic works under copyright cannot be registered as designs. Where a design capable of registration is not registered, section 15(2) provides only limited copyright protection — up to 50 reproductions by an industrial process, after which copyright ceases.

Indian courts have consistently applied this limitation, including in litigation involving the Ritu Kumar brand (Ritika Private Limited v. Biba Apparels Private Limited, CS(OS) No. 182/2011, High Court of Delhi), where copyright claims failed once the designs were applied to more than 50 garments without design registration. More recent Delhi High Court decisions, however, have recognised an exception for handcrafted and limited-edition luxury products. In the Bulgari Serpenti matter (Bulgari S.P.A v. Prerna Rajpal Trading, 2024 SCC OnLine Del 3339), copyright protection was upheld where the design originated as an artistic work, fewer than 50 pieces were produced, and the product was not the result of an industrial process.

In practice, copyright is best suited to bespoke or limited-edition creations, while design registration remains the more reliable route for mass-produced fashion and jewellery. That said, the aforementioned Concept Note also proposes to amend Section 15(2) in a way that it allows copyright protection for designs that are registrable under the Designs Act, 2000 but remain unregistered.

While trademarks, designs and copyright remain the principal IP tools used to protect fashion products, other forms of IP can be equally valuable depending on the nature of the product and business model. Patents, for instance, may be used to protect innovation-driven elements such as intelligent textiles, sustainable materials, or novel manufacturing technologies.

Another important form of protection — particularly relevant to India’s craft and textile heritage — is geographical indications (GIs). A GI identifies goods as originating from a specific territory, region or locality where their quality, reputation, or other characteristics are essentially attributable to that origin (on account of the environmental conditions or human skill). In India, GIs are protected under the Geographical Indications of Goods (Registration and Protection) Act, 1999. To qualify, the product must have a clear geographical origin, possess distinct qualities or reputation linked to that origin, and be produced or processed within that geographical area.

India has a rich portfolio of registered GIs in the fashion and handicrafts sector, including Pochampalli Ikat, Chanderi sarees, Mysore traditional paintings, Banaras Zardozi, and Kolhapuri chappals. Beyond preservation, GI protection also serves as a branding and export tool, allowing craft-based products to signal authenticity, command premium positioning, and secure legal recognition in international markets. It is particularly well suited for artisan collectives and regional clusters, helping prevent misappropriation while reinforcing the cultural and commercial value of traditional Indian fashion.

Licence agreements

Intellectual property (IP), although intangible, can be monetised much like immovable property. In the fashion industry, brands routinely leverage IP through commercial arrangements such as licensing, under which IP rights are granted to third parties on agreed terms to expand market presence and distribution. Licensing is a well-established practice in India across sectors, including fashion. By way of example, Superdry licensed its South Asian rights to Reliance Brands Ltd, enabling deeper market penetration through local expertise.

Indian designers are also increasingly collaborating with international fashion houses, combining Indian heritage with global design sensibilities. Such arrangements allow IP owners to commercialise their intangible assets efficiently, while local licensees benefit from the credibility and consumer trust associated with established international brands.

Key provisions typically addressed in a licensing agreement include:

• the nature of the licence (exclusive or non-exclusive);
• the territory in which the licensee may operate; and
• commercial terms, including royalties (often based on percentage of sales) and any one-time fees for know-how or technical assistance.

Equally critical is the inclusion of supervision and quality control mechanisms, which are essential to preserve the integrity of the licensed IP. Additional clauses that require careful consideration include:

• ownership of IP;
• indemnification;
• rights to further sublicence; and
• dispute resolution.

Non-disclosure agreements (NDAs)

Confidentiality and non-disclosure provisions are a critical component of licensing arrangements in the fashion industry, where the sharing of IP is often accompanied by the transfer of sensitive know-how, design concepts, sourcing information, and production techniques. Robust NDAs help ensure that such proprietary information is not misused or disclosed beyond the scope of the licence. Under Indian law, confidentiality obligations are enforceable even post-termination, and remedies include injunctions and damages.

This is particularly important given that post-employment non-compete restrictions are generally unenforceable in India as restraints of trade. As a result, brands often rely on carefully drafted confidentiality clauses to protect design information — for example, preventing a former collaborator or licensee from disclosing or reusing unreleased patterns, supplier lists, or seasonal collections. Where NDAs involve personal data (such as details of employees, artisans or vendors), compliance with the Digital Personal Data Protection (DPDP) Act, 2023 is also essential.

Subcontract agreements with suppliers/in-house manufacturing

Subcontracting arrangements are common in the fashion industry, allowing brand owners or licensees to outsource production to suppliers or manufacturers in a cost-effective manner while leveraging established manufacturing capabilities. These agreements govern the relationship between the principal and the subcontractor and are subject to general principles of contract law.

A well-drafted subcontract or manufacturing agreement clearly defines the scope of work, quality standards, pricing, production timelines, and delivery obligations, while addressing ownership and permitted use of IP. Strong quality-control provisions are critical in fashion, where consistency directly impacts brand value. Apart from clear clauses defining liability and indemnification, aspects of non-compete and non-solicitation must be factored.

They may also restrict further subcontracting, an increasingly important consideration in light of supply chain transparency and sustainability requirements.

Appointing distributors is a common commercial arrangement within the fashion industry to tap into newer markets. Here, again, a fashion house can choose the rights that may be offered to a distributor, including appointment of an exclusive or a non-exclusive distributor, together with choice of territory. A well-structured distribution system ensures an extensive and secure supply chain, making quality products available to consumers. Aspects requiring well-defined clauses in distribution agreements include:

• responsibilities of the manufacturer;
• obligations of the distributor;
• conditions of sale and publicity (including online channels);
• ownership of IP;
• termination and disposal of unsold stock.

Agency agreement

Through agency agreements, a brand owner can penetrate the market by appointing agents who are responsible for marketing and promotion of the brand together with sales of the brand owner’s products. This arrangement is usually not preferred by fashion houses since the agent carries on business activities on behalf of the brand owner and the brand owner can be held accountable for the agent’s conduct. Indian contract law provides for agency indemnity by establishing the right of indemnification for lawful acts performed by an agent on behalf of the brand owner. Therefore, distribution arrangements where the brand owner and the distributor collaborate on a principal-to-principal basis, is usually the preferred mode of collaboration.

Selective distribution online in high-end fashion and trademark protection

Fashion and luxury brands frequently rely on selective distribution systems to manage how their products reach the market and to preserve brand positioning. Under this model, brands authorise only specific distributors or platforms to sell their products, typically based on qualitative criteria such as store environment, service standards, or brand alignment. The objective is not volume, but control over brand image and presentation, exclusivity, and consumer experience.

Selective distribution is a vertical agreement (i.e. between parties at different levels in a supply chain), which falls under the umbrella of the Indian Competition Act, 2002 and therefore it is valid so long as appreciable adverse effect on competition (AAEC) is not caused. Factors that need to be considered while assessing if an arrangement has an AAEC include:

• creation of barriers to new entrants in the market;
• driving existing competitors out of the market;
• foreclosure of competition;
• benefits or harm to consumers;
• improvements in production or distribution of goods or provision of services; and
• promotion of technical, scientific and economic development by means of production or distribution of goods or provision of services.

Having said that, complete control on distribution by brand owners is negated with provisions of the Trade Marks Act, 1999, recognising the doctrine of trademark exhaustion. Pursuant to the provisions of the said act, upon lawful acquisition of a product by a consumer, subsequent sales thereof cannot be considered as infringement. Thus, a brand owners’ rights are exhausted after the initial sale of its products.

Co-branding and co-marketing

Co-branding and co-marketing are common strategies in the fashion and luxury sectors to combine market reach and brand equity. Co-marketing typically involves joint promotion, allowing one brand to leverage another’s market presence without creating a combined brand identity. Co-branding, by contrast, entails a closer association — often a joint product or collection — where the goodwill of each brand directly enhances the other.

Given the reputational interdependence these collaborations create, agreements must clearly define:

• IP ownership;
• revenue sharing;
• territorial scope;
• quality control; and
• marketing and distribution responsibilities.

Equally important are termination and exit provisions. Where brands operate under a shared or closely linked identity, reputational damage to one — particularly through regulatory issues or social media fallout — can directly impact the other. As a result, modern co-branding arrangements increasingly include morality clauses and reputation-based termination rights.

Franchising and alternative sales model agreements

A franchise agreement is a commonly adopted business model, particularly in fashion, to authorise a franchisee to open a franchise site while granting the ability to use franchise-specific resources, such as branding, business methods and supplier sources. The genesis of a franchising agreement is the commonality of the look and feel of a store, thereby assuring consistent customer engagement and satisfaction globally. Franchising agreements should include key clauses around maintaining consistency in look and feel, jurisdiction of operation, franchise fees and royalty payments, as well as common clauses such as term, dispute resolution, ownership of IP, confidentiality and termination.

Alternative sales models may include the following:

• Corners or “shop in shop” within a larger multi-brand store dedicated to a particular brand which may be leased by that brand on pre-decided terms. The corner store owner typically pays the brand a percentage of sales for the products they sell.
• Consignment stores. These are retail shops that sell products on behalf of individuals or businesses (consignors) who retain ownership until the item is sold. Consignors provide their products to the store for sale. The store earns a commission on each sale. Unsold items may be returned to the consigner.
• Pop-up stores. These are temporary retail spaces that allow businesses to showcase products or services for a short period, often in high-traffic areas or during special events or seasons. Pop-up stores are versatile and can be set up in various locations. They create a sense of urgency and novelty, attracting customers. Contracts may specify the duration, rent, and terms.

Advertising plays a central role in shaping a fashion brand’s market presence. Beyond traditional models, brands increasingly engage celebrities, influencers, and digital avatars to leverage established followings and strengthen consumer connection. Whether structured as long-term ambassadorships or one-off campaigns, such engagements require carefully drafted agreements to align commercial objectives and manage risk. Key clauses in celebrity and influencer advertising contracts typically include:

• aspects covering exclusivity of the celebrity/influencer involved;
• tenure of engagement;
• rights and obligations of the parties;
• commercial terms;
• indemnification provisions; and
• termination and related outcome.

Employing fashion models

A modelling contract is an essential part of the fashion industry, binding models to clients or agencies with specific terms and conditions. Broadly, common modelling contracts can be exclusive, non-exclusive or one-time only.

Common clauses include:

• A personal information transfer agreement which addresses the lawful use of a model’s personal data by modelling agencies, ensuring data security and defining how information is shared. Where modelling agreements involve collection and use of personal data (including photographs, videos, biometric identifiers or contact details), parties must ensure compliance with the DPDP Act, 2023, including valid consent and data security safeguards.
• Limitation of liability specifies the damages or compensation one party must provide to the other, ensuring that parties are not held responsible for more than agreed upon.
• An indemnification clause, which transfers risk from one party to another, specifying which party is responsible for costs arising from breaches or misconduct.
• A disclaimer clause outlining rights and obligations in a contract, often including warnings or expectations to prevent harm or injury.
• The term defines the duration for which the contract is in effect, obligating both parties to adhere to its terms until expiration.
• An earnings clause determines the commission taken by the modelling agency from the model’s earnings, typically approximately 20%.

Model release forms

A model release is a contract that permits a company to publish the subject of a photograph/copyrighted work for commercial purposes. This is a written agreement that allows authorised users to publish an image. The person depicted in the image must agree with the brand’s exclusive rights to modify, publish and redistribute their images for promotional content. Key clauses include:

• identification and definition of parties;
• media type and usage;
• nature of rights (exclusive or non-exclusive);
• release of image to third parties;
• usage restrictions; and
• liability and assignment.

Social media, influencers and brand ambassadors/celebrities

Influencer and celebrity advertising is now central to fashion and luxury branding, attracting heightened regulatory scrutiny in India. In June 2021, the Advertising Standards Council of India (ASCI) issued guidelines requiring clear disclosure of paid promotions, with a deliberately broad definition of “influencer” that includes virtual influencers and digital avatars, irrespective of follower count. While ASCI functions as a self-regulatory body, its framework is reinforced by statute through the Central Consumer Protection Authority (CCPA) Guidelines on Misleading Advertisements and Endorsements, 2022, read with the Consumer Protection Act (CPA), 2019, and supplemented by the Department of Consumer Affairs’ guide “Endorsements Know-Hows!” (2023). Non-compliance can attract penalties of up to INR 1 million for a first violation and INR 5 million for subsequent violations, along with endorsement bans of up to three years.

Endorsements are treated as advertisements wherever a material connection exists — covering monetary compensation, gifts, discounts, free travel, or family or employment relationships — and such connections must be clearly and prominently disclosed using labels such as “Ad”, “Sponsored” or “Paid Promotion”. Blanket disclosures in profile bios are insufficient. Regulatory attention has also sharpened at the platform level; notably, in January 2025, ASCI issued an advisory directed at LinkedIn influencers, given the absence of in-built disclosure tools and the rise of undisclosed professional endorsements. Furthermore, the amended Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2026, effective 20 February 2026, impose stricter transparency and accountability standards for AI-generated and synthetic content, including mandatory labelling, user disclosures, and sharply reduced takedown timelines. For social media influencers, this heightens compliance risks, particularly where filters, voice cloning, or AI-altered visuals are used, as misclassification or non-disclosure may trigger platform action or legal exposure. The rules also increase traceability and enforcement sensitivity around deepfakes, impersonation, and deceptive content.

Against this backdrop, well-drafted influencer and celebrity agreements are critical. These agreements should clearly allocate content ownership and IP rights, prescribe mandatory disclosure language and placement, and set content standards prohibiting misleading or unsubstantiated claims, backed by indemnities. Where influencers create content, they should confirm originality, non-infringement, and absence of conflicting endorsements. Agreements must also define the scope of engagement (term, platforms, frequency), require compliance with applicable local and cross-border laws, and include morality and reputation clauses allowing swift termination in cases of public controversy or criminal investigation. Practical safeguards such as monitoring rights, rapid takedown obligations, approved disclosures, and post-campaign analytics are increasingly standard.

Advertising standards, relevant authorities and advertising practice

In addition to the endorsement and influencer-specific regulations outlined above, advertising in India is also governed by broader self-regulatory standards enforced by ASCI. Established in 1985 under the Companies Act, 1956, ASCI operates through its Code for Self-Regulation in Advertising to ensure that advertisements across all media, including television, are legal, decent, honest and truthful. While voluntary, ASCI’s directions carry practical force, particularly in the television context, where non-compliance may result in modification or withdrawal of advertisements and escalation to statutory authorities.

ASCI’s oversight is complemented by statutory intervention from the CCPA, established under the CPA, 2019. In a significant development for sustainability claims, the CCPA notified the Guidelines for Prevention and Regulation of Greenwashing or Misleading Environmental Claims, effective 15 October 2024. These guidelines directly address greenwashing by requiring environmental claims to be truthful, verifiable, and adequately substantiated. Together with ASCI’s Guidelines for Advertisements Making Environmental/Green Claims (effective 15 February 2024), which mandate robust scientific evidence or recognised certifications for absolute claims such as “eco-friendly”, “sustainable” or “planet-friendly”, the regulatory framework now subjects environmental, social and governance (ESG) and sustainability messaging to heightened scrutiny. Non-compliant advertisements may be required to be modified or withdrawn and may also attract regulatory action, making careful substantiation essential for fashion and consumer-facing brands.

Consumer protection rights in India are regulated by the CPA, 2019 and the rules made thereunder, including:

• the Consumer Protection (E-Commerce) Rules (2020);
• the Consumer Protection (Mediation) Regulations (2020);
• the Consumer Protection (General) Rules (2020); and
• the Consumer Protection (Consumer Disputes Redressal Commissions) Amendment Rules (2022).

Provisions under the CPA, 2019 allow a consumer to file a complaint and obtain relief against unfair trade practices by a company/brand. Unfair trade practices are clearly defined in the act and include false and misleading representations by brands. Complaints may also be filed to obtain relief against defective products, a deficiency in services or when charged over a fixed or displayed price. A complaint may also be made when goods, which may be hazardous or unsafe, are being sold. Rights given to consumers under the CPA include, amongst others, protection against the marketing of hazardous products/services and the right to be informed of the quality, quantity, purity, standard and price of goods (see www.indiacode.nic.in/bitstream/123456789/15256/1/a2019-35.pdf).

Based on a broad definition of trademarks under the Trade Marks Act, 1999, store layouts qualify for trademark protection in India if they are capable of graphical representation and rendering a source identifier function. However, the burden of establishing distinctiveness (inherent or acquired) is higher than for typical trademarks. Several store layouts stand registered as trademarks in India, such as the layout of MARY COHR.

As for online stores, rights may be enforced under the Copyright Act, 1957, which can protect digital creations as well as multimedia elements. Indian courts have increasingly recognised that a retail store’s overall “look and feel” can function as protectable trade dress, extending beyond traditional trademarks. In Lenskart Solutions Limited v. Mr. Chetan Govind Vhand (CS(COMM) 814/2025, order dated 8 August 2025), the Delhi High Court granted ex parte interim relief, holding that store layout, interior décor, signage, visual cues and overall customer experience, when taken together, can operate as a source identifier. The court restrained the defendant from using a deceptively similar store design and branding elements, noting actual consumer confusion and recognising that brand experience itself forms part of goodwill and reputation. The decision reflects an evolving judicial approach in India that treats sensory and experiential branding — whether in physical stores or analogous digital environments — as a protectable IP interest where it distinguishes origin and risks consumer deception when copied.