[By Inika Dular]
The author is a student of Rajiv Gandhi National University of Law, Punjab
Why the controversy?
The recently released Kolhapuri chappal version by Prada, a design steeped in cultural history in Maharashtra, truly made waves, not for beauty but for a price tag of INR 1.2 lakh without meaningful acknowledgement of its Indian roots. Very shortly after, Dior showcased a USD 200,000 overcoat with mukaish embroidery, the metallic thread technique that has been perfected for centuries by artisans in Lucknow. This coat was lauded by fashion critics and jeered at by Indian designers and craft advocates. There was, however, little mention of Indian craftsmen who developed the technique in the marketing materials. The brand had organised a show in Mumbai in 2023, but crediting a country is not the same as crediting a community.
The IP Law Blind Spot
Intellectual Property (IP) law, as designed, protects novelty and individual authorship. Copyright guards original artistic work and economic value; design law protects industrial designs for a limited duration; and trademarks ensure brand identity. But what happens when the author is a community, the novelty is centuries old, and the economic value is repackaged by someone else?
The Kolhapuri chappal, for instance, received a Geographical Indication (GI) tag in 2019, a tool meant to protect products rooted in place and tradition, like Champagne or Darjeeling tea. Yet, GIs only restrict unauthorised use within the jurisdiction of registration, unless India signs reciprocal protection agreements. Prada, headquartered in Italy, is not bound by the Indian GI regime, nor does Trade-Related Aspects of Intellectual Property Rights (TRIPS) (the WTO’s IP framework) enforce these protections meaningfully across borders.
The ineffectiveness of the existing international arrangements becomes apparent when one observes the treatment of GI under the TRIPS Agreement. Article 22 of TRIPS caters only to basic protection for GIs in all products, requiring Member States to stop the use of a GI that misleads the public or amounts to unfair competition. At the same time, enhanced protection is provided for in Article 23 for only wines and spirits. Under this two-tier system, European alcoholic beverages enjoy a higher degree of protection than the handicrafts of African and many other developing countries. Articles 22 and 23 require member countries to refuse or invalidate trademark registrations containing false geographical indications, but it is for wines and spirits alone that such protection stands, regardless of whether the public is being misled.
Indian courts have had to fight these issues through landmark decisions revealing the imbalance in IP protection. In Scotch Whisky Association v. Pravara Sahakari Shakkara Karkhana, the Bombay High Court recognized GI protection for Scotch whisky without any Indian registration, thereby indicating how international brands can rely on their reputation for protection. This recognition was, however, not extended reciprocally to Indian traditional crafts in foreign jurisdictions, where local artisans do not have the resources or legal standing to pursue this sort of protection.
The case law reveals a disturbing tendency: the courts in India have tended to exhibit sympathy toward foreign GIs for matters of international reputation and consumer recognition, whereas hardly ever do Indian traditional crafts stand for such recognition abroad. That judicial discrimination is indeed but a superficial lineal manifestation of deeper, embedded structural inequities afflicting the global IP structure; that is to say, consumers of a market are made aware through marketing expenditures by well-gelded established brands; such consumer awareness is accepted by courts as an interest worthy of protection, and such an interest can be denied to traditional artisans aiming at establishing a market from within their informal networks.
What Dior Gets to Do, Mukaish Workers Can’t
Let us go back to the Mukaish overcoat again. This technique, which employs twisting micro-thin metallic wires into fabric patterns, goes way back to the Mughal era and is still kept alive by the underpaid artisans working in the narrow alleys of Lucknow. Contrary to this electrifying history, a Dior product, whose price is equal to what these artisans can earn in a lifetime, never made any mention of these craftsmen, nor did they share any royalties or enter into any form of collaboration.
If an Indian label tried to reverse-engineer the Dior coat, and managed to get hold of its look and feel, it could face suits for design infringement, DMCA takedowns, and brand dilution claims. But there is no reciprocal right available to these craftsmen. Presently, the IP law setup can perhaps be described by the nomenclature: ‘lawful cultural piracy.’
The Indian Designs Act, 2000, ostensibly protects industrial design but systematically excludes traditional crafts. Section 2(d) defines design through the lens of industrial manufacture and does not cater to the domain of community craftsmanship, wherein designs are generated on an organic basis through mutational changes across generations. Section 4 prescribes that the design be new, but this demands an impossible standard for an ancient technique like that of mukaish work, and Section 11 boldly offers just 10 years of protection, which is terribly short for traditional designs that have been molded by generations of cultural expression.
The enforcement asymmetry finds manifestation in the outcome of litigation. Indian courts have favoured Western luxury brands over Indian manufacturers. The Delhi High Court, in the case of Louis Vuitton v. Haute24.com, granted a permanent injunction against and awarded damages to the plaintiffs against Indian defendants. In Louis Vuitton Malletier v. Futuretimes Technology India Private Limited, the Court awarded ₹20 lakh damages in favour of the French luxury house for trademark infringement. These cases reveal how, within a matter of months, the established brands get ex parte interim injunctions, while the traditional artisans have none at their disposal.
In contrast, traditional artisans face an evidentiary problem beyond the reach of the legal regime. How does one prove ownership of techniques passed down through generations without written records? The individual proprietary focus of Section 5 of the Indian Designs Act actually works against traditional handicrafts of a collective nature, effectively rendering entire communities legally invisible despite their formation of valuable cultural assets.
The Soft Law Path: Global Norms on Traditional Cultural Expressions
The World Intellectual Property Organization (WIPO) has proposed to fill in this gap with its proposals on Traditional Cultural Expressions. The proposals call for sui generis protections for cultural heritage and direct states to identify and record communal intellectual property. However, these are merely soft law instruments, non-binding, evolutionarily slow, and have never been incorporated into the WTO or any bilateral trade agreements.
International precedents today showcase that such protection of traditional knowledge can indeed be initiated. Peru’s National Commission Against Biopiracy has intervened in at least 170 patent applications, through which alleged biopiracy attempts have tried to prevent foreign corporations from patenting indigenous plant knowledge. The Andean Community (Colombia, Ecuador, Peru, and Bolivia) requires certified written consent from local communities before any invention involving traditional knowledge can be patented.
New Zealand offers another model through its Māori Advisory Committee system. The Committee advises the Intellectual Property Office (IPO-NZ) on whether inventions claimed in patent applications are derived from Māori traditional knowledge, while IPO-NZ checks all applications for trademarks or patents for mātauranga Māori and sends applications to the Māori Advisory Board if they contain Māori elements.
What Could Legal Reform Look Like?
A rethink is overdue. Here are three legal innovations India and the global community could pursue:
1. Mandatory Attribution Protocols
Fashion houses using identifiable GI-tagged elements (like Kolhapuri, Pashmina, or Banarasi) could be legally mandated to disclose origin and artisan credits in their labelling and promotion, much like provenance rules in the art world.
2. Artisan Credit Certificate Framework
A centralised registry could issue Artisan Credit Certificates, documenting and authenticating traditional craftsmanship. Brands using these could be incentivised through ethical fashion ratings, customs benefits, or co-branding opportunities.
3. Cross-Border GI Enforcement through Trade Policy
India could integrate GI enforcement into its Free Trade Agreements (FTAs), especially with fashion-heavy jurisdictions like the EU and UK, making it a condition for import-export privileges.
Additionally, India has established foundations for traditional knowledge protection through its Traditional Knowledge Digital Library, which documents over 34 million pages of traditional knowledge to prevent biopiracy in pharmaceuticals. However, this defensive approach needs expansion to crafts and textiles.
The government’s One District One Product (ODOP) scheme, promoting unique local products across 761 districts, could serve as a foundation for comprehensive traditional craft protection. Integrating ODOP with enhanced GI registration and mandatory attribution protocols would create a robust framework linking local economic development with cultural preservation, ensuring artisans benefit from their heritage while preventing appropriation.
Conclusion: The Fashion of Forgetting
India’s fashion heritage is one of the richest in the world. But the legal system currently offers more protection to the Dior logo than to the mukaish karigar’s labour. While cultural exchange is essential in a globalised world, there must be a distinction between celebration and commodification. The law must move beyond the romanticism of heritage and embrace justice in ownership. If haute couture is going to wear the legacy of India’s artisans, it should also wear the legal and moral responsibility that comes with it.
Until then, the Kolhapuri will continue to walk the ramps of Milan, stripped of its Marathi soul, priced for the elite, and protected by laws that defend the powerful, not the originators.