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The intersection of fashion and intellectual property (IP) presents a complex and often contradictory legal landscape. In contemporary fashion, the cyclical emergence of trends poses complex challenges for legal protection, particularly in the context of intellectual property (IP). A central and on-going question in this context is whether a design can be so “trendy” or common that it cannot receive trademark protection. This inquiry examines the main principles of trademark law, particularly the ideas of distinctiveness and aesthetic functionality. It also highlights the risky situation for a design that suffers from its own commercial success.
Trademark Law in Fashion: Foundational Principles
Trademark law is vital in the fashion world, serving as a legal mechanism that safeguards distinctive elements, like a brand’s name, logo, or design that differentiate its offerings from others. However, its scope is limited; it does not extend to every creative aspect, but rather focuses on protecting identifiers that signify brand origin. Instead, it aims to help consumers consistently recognize the origin of goods and services based on distinctive signs, safeguarding both consumer trust and commercial goodwill. Each creation represents an intangible asset that, if not adequately protected, may be vulnerable to imitations, counterfeiting, and strategic information leaks that could compromise the company’s position. India’s trademark system operates under the provisions of the Trademark Act enacted in 1999. It enables designers to secure legal rights over brand names, logos, emblems, or even distinctive visual elements that define their fashion lines.
Trademark law in fashion is anchored in several core principles. First, a mark must possess distinctiveness, to be recognized as identifying a specific source. Secondly, the non-functionality rule ensures that utilitarian features. To secure legal protection, trademarks must be actively utilized in the marketplace. This entails their visible presence on products or within advertising materials, serving to identify and distinguish the source of goods or services. Mere registration without genuine commercial use does not suffice; continuous and lawful use is essential to establish and maintain trademark rights. Finally, trademark law provides protection against consumer confusion, allowing fashion brands to take action against imitators whose products may mislead consumers about their origin.
Why Most Fashion Designs Don’t Qualify for Trademarks
Fashion designs, despite their inherent creativity, rarely secure trademark protection due to specific legal criteria. Trademark law primarily guards’ elements that uniquely identify a product’s source. Most clothing designs—be it particular cuts, silhouettes, or aesthetic details—are perceived as decorative or functional rather than brand identifiers. Unless a design achieves singular, widespread recognition as originating from one specific company (e.g., Burberry’s distinct check), it falls short of this core trademark purpose.
A key hurdle is distinctiveness. Designs must either be inherently unique or gain consumer association with a single source through extensive, exclusive use, as exemplified by Louis Vuitton’s renowned monogram. However, fashion trends, by their very nature, are widely adopted and imitated, rapidly diluting any potential distinctiveness and preventing them from serving as reliable source indicators.
Furthermore, trademark law excludes features that are primarily functional or essential to a product’s use, such as a basic garment construction. Similarly, purely ornamental elements that don’t convey commercial origin, like generic patterns, are not eligible for trademark status. This framework also aims to preserve the “fashion commons,” preventing perpetual monopolies over design elements crucial for the industry’s artistic and economic dynamism, thereby fostering continuous innovation rather than hindering it.
The Impact of Trendiness on Trademark Eligibility
A fashion design that is too trendy is often, by nature, fleeting and widely adopted by many actors in the industry. This widespread adoption undermines its distinctiveness—a core requirement for trademark registration. When a trend is generic, ephemeral, or lacking in source-identifying function, trademark protection is inappropriate: Furthermore, when a design becomes popularized across the market, it risks being viewed as a common style rather than a proprietary mark. As a result, the more a fashion feature blends into a trend, the less likely it is to qualify for trademark protection, as it may fail to signal a single source or avoid consumer confusion.
In Aditya Birla Fashion and Retail Ltd. v. Manish Johar,[1] Aditya Birla Fashion, owner of the “ALLEN SOLLY” brand, discovered that Manish Johar was manufacturing and selling counterfeit goods bearing deceptively similar branding. These products were also being circulated online. The Hon’ble Saket District Court recognized plaintiff’s trademark rights and found that the defendant’s goods were intended to deceive consumers. Permanent injunctive relief was granted, and the Hon’ble Court ordered that counterfeit stock be seized and destroyed. This ruling showcased Indian court’s increasing attention to impose stringent remedies against counterfeiting, including injunctions and destructions of infringing products, thereby protecting consumer trust and brand’s goodwill.
In the case of Ritika Private Limited v. BIBA Apparels Private Limited[2], owner of the celebrated “RITU KUMAR” label sued BIBA Apparels. Ritika alleged that BIBA had copied its garment designs. However, the Hon’ble Delhi High Court clarified that once an artistic work is industrially applied and reproduced more than 50 times, copyright protection discontinues as per Section 15(2) of the Copyright Act unless the design is registered under the Designs Act, 2000. Since, Ritika’s designs were unregistered, its claim failed.
Similarly, in the case of Microfibres Inc. v. Girdhar & Co.,[3] Microfibres, a textile manufacturer claimed that Girdhar & Co. had copied its upholstery fabric designs. The plaintiff pleaded that the patterns should be protected as artistic works under the Copyright Act. The Hon’ble Delhi High Court emphasized that once an artistic work is applied to an industrial product; it ceases to qualify for copyright and falls within the ambit of the Designs Act. Since Microfibres had not registered its designs, no protection was available. The Hon’ble Supreme Court later affirmed this decision underlining the legislative intent to prevent dual protection and harmonize the two statutes.
In the case of Rajesh Masrani v. Tahiliani Design Private Ltd.,[4] Rajesh Masrani alleged that Tarun Tahiliani’s fashion house had copied his fabric prints. The defense argued that the works were unregistered designs, and hence not enforceable under the Designs Act. The Hon’ble Delhi High Court held that the plainitff’s prints were original artistic works as per Section 2(c) of the Copyright Act, and therefore protectable since the designs had not been mass produced beyond the threshold of Section 15(2), copyright subsisted. The defendant’s appeal was dismissed.
Aesthetic Functionality Doctrine
A significant obstacle in securing trademark protection for fashion designs lies in the doctrine of aesthetic functionality. This principle holds that a feature cannot be monopolized as a trademark if it is primary appeal lies in its aesthetic value or if it confers a competitive advantage of source identification. The rationale is to ensure that no single brand can claim exclusivity over design elements that consumer are drawn to for their beauty or style, rather than for brand association.
Courts frequently reply on competitive necessity test to determine whether a feature qualifies as aesthetic functionality. The more a design reflects a prevailing trend, the greater the likelihood that it will be regarded as an aesthetic choice necessary for the competitors to adopt freely. In such circumstances, trademark protection is denied to avoid restricting legitimate competition in the marketplace.
A recent and instructive example of Indian jurisprudence can be found in the case of Royal Country of Berkshire Polo Club Ltd & Ors v. Lifestyle Equities C V & Ors[5], also known as Beverly Hills Polo Club (BHPC) case. In early 2025, the Hon’ble Delhi High Court ordered an Amazon subsidiary to pay USD 39 Million (approximately INR 340 Crore) in damages for selling apparel featuring a logo nearly indistinguishable from the BHPC trademark. The Hon’ble Delhi High Court’s ruling emphasized that brand identifying elements, regardless of aesthetic appeal are entitled to protection where they serve as strong indicators of source and reputation. Unlike cases involving purely decorative motifs that fail to signal origin and thus fall prey to the doctrine of aesthetic functionality, BHPC’s logo had achieved brand distinctiveness and consumer recognition. The Hon’ble Delhi High Court’s approach reinforces that courts will protect decorative designs when they play a clear source identifying role, reaffirming that distinctiveness, not ornamentally, remains the guiding principle in trademark enforcement. For fashion and lifestyle brands, the BHPC decision provides a compelling blueprint i.e., registering and cultivating distinctive, recognizable designs is essential to ensuring legal protection, not just foe aesthetic merit, but as embodiments of brand identity.
Conclusion
A design cannot be deemed “too trendy” to trademark in the legal sense; rather, trendiness itself is antithetical to the distinctiveness and source-indicating function necessary for trademark protection. Trend-driven, short-lived designs usually enter the public domain, available for all to use, unless and until they gain sufficient secondary meaning to become inextricably linked with a single brand. For fashion innovators, robust protection lies in a layered IP strategy involving design registration, trademark cultivation, and copyright protection.
[1] TM No. 7/2017
[2] CS(OS) No. 182/2011
[3] 128 (2006) DLT 238
[4] FAO (OS) No. 393/2008
[5] 2023 SCC OnLine Del 5347