A shopper picks up a pair of red-soled shoes at a Delhi market stall. He knows they are not Louboutins. The seller knows. The manufacturer knew. And yet, under conventional intellectual property doctrine, identifying who bears liability and proving it remains surprisingly complex. This is a structural challenge, and it is attracting serious legal attention.
The framework is being tested by a changed world
Fashion IP law was designed around a simple story. A designer creates something distinctive, a copycat reproduces it, and the law steps in. That model assumed copying was concealed and distribution was containable. Both assumptions have shifted considerably. The legal framework is now being tested by a changed world.
Copying in the contemporary fashion economy is often open, acknowledged, and commercially celebrated. The word “dupe”, short for duplicate, has become a consumer category in its own right, enthusiastically shared across social media.
Copying in the contemporary fashion economy is often open, acknowledged, and commercially celebrated. The word ‘dupe’, short for duplicate, has become a consumer category in its own right, enthusiastically shared across social media. The consumer at the end of the supply chain frequently made a fully informed choice. And that is precisely what the doctrine was not designed for.
Trademark protection exists to prevent consumer confusion. When the consumer is not confused at all, the doctrine requires rethinking. The question is not whether imitation occurred. It is whether the law can identify who bears responsibility for it, and prove it.
The Consumer Data: Deliberate Purchase, Not Deception
The foundational premise of trademark protection, that the law exists to prevent consumer confusion, is being directly tested by data on purchasing behaviour.
| 13% | Europeans who reported intentionally purchasing counterfeit goods in 2023, rising to 26% among consumers aged 15 to 24. European Union Intellectual Property Office, 2023 |
| ~1 in 3 | European consumers who consider purchasing a counterfeit acceptable when the genuine product is unaffordable. Among younger consumers, the proportion approaches 1 in 2. EUIPO, 2023 |
| 31% | Indian consumers who reported purchasing or encountering counterfeit apparel in the past year, consistent across the 2022 and 2025 CRISIL-ASPA reports. CRISIL-ASPA State of Counterfeiting in India 2022 and 2025 |
| 71% | Share of counterfeit apparel exposure reported through online marketplaces in India CRISIL-ASPA State of Counterfeiting in India 2025 |
Indian consumers estimate that roughly one-third of branded apparel in circulation may be counterfeit, while a significant majority believe that such activity has increased in the recent past. The pricing dynamic reinforces this persistence: counterfeit apparel is perceived to be materially cheaper than genuine products, even as consumers express willingness to pay a premium for assured authenticity. Taken together, the data suggests that counterfeiting in India operates not merely as an enforcement gap, but as a structurally embedded and behaviourally sustained market phenomenon.
The Supply Chain Adds Meaningful Complexity
In significant segments of fast fashion, garments do not originate within a brand’s internal design studio. They are developed by Original Design Manufacturer (ODM) factories, which independently create designs and offer them across multiple brands simultaneously. When design inspiration flows through multiple layers of suppliers and intermediaries, identifying the precise point where copying occurred and demonstrating that a downstream retailer had knowledge of it becomes a substantial evidentiary challenge.
The doctrine of contributory liability, as discussed by the US Supreme Court in Inwood Laboratories v. Ives Laboratories, requires exactly that showing that the party knowingly contributed to another’s infringement.
Technology has made the question more acute. Court filings in disputes involving Shein, including Perry et al. v. Shein Distribution Corp., described software tools that monitor online trends and transmit design signals to suppliers for rapid production. The matter settled without a judicial ruling, but the filings drew attention to how automated trend analysis may now drive design replication at scale.
What the Law Offers: Three Doctrines and Their Limits
The legal framework that currently addresses fashion IP was built for a different commercial architecture. Three principal doctrines are in play, and each shows its strain when applied to the contemporary fashion supply chain.
| Doctrine | What It Requires | Where It Strains |
| Copyright (artistic elements only) | Star Athletica v. Varsity Brands (2017): surface graphics and artistic elements may qualify if conceptually separable from the garment’s utilitarian function | The cut, shape, and structural configuration of most clothing remains outside copyright. Only visual surface elements, not the design of the garment itself, attract protection. |
| Trademark / Trade Dress | Acquired distinctiveness, non-functionality, and likelihood of consumer confusion must all be established | In markets where consumers deliberately seek out copies, the likelihood of confusion element is very difficult to establish. The consumer was not confused. |
| Contributory Liability | Inwood Laboratories v. Ives Laboratories: the party must have knowingly contributed to another’s infringement | When design signals flow through multiple intermediaries and automated systems, establishing knowledge at any specific point in the chain is a substantial evidentiary challenge. |
IP rights are also territorial, granted country by country, while supply chains run across dozens of jurisdictions simultaneously. Aligning the geographic footprint of legal protection with the actual path of production and distribution has become one of the defining strategic tasks for rights-holders.
The India dimension
These challenges are not abstract for brands operating in India. Rapid growth in luxury consumption has been accompanied by a parallel expansion in the market for imitation goods, circulating through both traditional retail markets and digital platforms.
| ₹7.97 lakh crore | Estimated size of India’s illicit market across five major sectors, of which textiles and apparel account for approximately ₹4.03 lakh crore, the single largest segment FICCI CASCADE-TARI, Consuming the Illicit, 2024 |
| 50-60% | Share of market volume potentially accounted for by imitation garments in certain apparel segments FICCI MASCRADE Report, 2019 |
| ₹4,300 bn | Size of India’s domestic readymade garment market in FY25, projected to reach approximately ₹4,600 billion by FY26, alongside deeply embedded counterfeiting patterns Industry estimates, FY25 |
The Delhi High Court has been an active venue for enforcement actions. Christian Louboutin, for instance, successfully pursued action against an Indian retailer manufacturing and selling shoes resembling certain of its designs. The court imposed a financial penalty and directed discontinuation of the products. The scale of the broader ecosystem, however, places individual enforcement actions in perspective. Enforcement actions address individual infringers. They do not address the structural conditions that make the ecosystem persistent.
Counterfeiting in India operates not merely as an enforcement gap, but as a structurally embedded and behaviourally sustained market phenomenon. The legal framework exists. The enforcement machinery exists. What is being tested is whether they are sufficient for the scale and structure of the problem.
What Effective Protection Requires
The gap between enforcement outcomes and market realities points to a strategic question for rights-holders. If imitation can emerge from multiple points within the supply chain, protection must be structured with the same awareness. A reactive enforcement posture, responding to discovered infringement, is structurally insufficient when replication is simultaneous, distributed, and commercially sophisticated.
Brands increasingly approach intellectual property as an integrated strategy by identifying every protectable asset within a product and securing the most appropriate form of protection for each. A second layer of jurisdictional protection is then added based on the markets that shape the product’s manufacturing and distribution. Because IP rights are territorial while supply chains are global, an effective strategy prioritises filings in manufacturing and export hubs rather than focusing solely on consumer markets.
1. Identify every protectable asset within the product
A single fashion product may contain elements protectable under different IP regimes: a surface graphic as a copyright work, an overall silhouette or colour combination as trade dress, a label as a registered trademark, and a structural feature as a registered design. Each requires a different registration, different maintenance, and different enforcement strategy. Building an IP portfolio means mapping every one of these assets explicitly rather than relying on a single form of protection.
2. File in manufacturing hubs, not only in consumer markets
IP rights are territorial. A trademark registered in the country where the consumer purchases the counterfeit product does not reach the factory in a different jurisdiction where it was manufactured. An effective strategy requires filing in the key manufacturing jurisdictions as well as in the consumer markets. Where a product’s supply chain runs through specific export hubs, those hubs should be included in the filing portfolio.
3. Record rights with customs authorities
Recording trademark and copyright registrations with customs authorities in key jurisdictions extends protection to the point of shipment. Infringing goods can be intercepted before they reach retail channels rather than after they enter the consumer market. This is the most cost-effective point in the supply chain at which to apply enforcement resources.
4. Build the chain of custody before infringement occurs
Establishing the provenance of original designs, the date of creation, and the chain of commercialisation is significantly easier before infringement is discovered than after it. Timestamped design records, documented supply chain relationships, and consistent registration practices create the evidentiary foundation for enforcement actions. Reconstructing that record after infringement has occurred is both slower and less reliable.
5. Use technology to monitor at scale
The same technology that enables rapid design replication at scale, trend monitoring, image recognition, and platform search, is also available to rights-holders for monitoring purposes. Systematic monitoring of online marketplaces, social media, and export platforms, combined with structured notice-and-takedown processes, can address infringement at the distribution layer where it is most visible and most rapidly damaging to brand value.
The Deeper Question
The deeper issue confronting IP doctrine is not simply one of enforcement gaps. It is whether legal frameworks designed for discrete, bilateral acts of copying remain adequate for an industry where imitation can emerge simultaneously from multiple points within a globally distributed system, and where the consumer at the end of that chain made a fully informed choice.
When the buyer knows, when the seller knows, and when the manufacturer knew, the question of who is the infringer becomes a question about where in the supply chain the law can establish knowledge, identify causation, and reach an enforceable remedy. Each of those steps is harder in a distributed, multi-jurisdictional, algorithmically-coordinated production system than it was when the doctrine was designed for a single copycat working at a printing press.
Conclusion
In the contemporary fashion economy, building the systems and protections that make infringement identifiable and actionable may be where the most consequential work happens. The law exists. The doctrines exist. The challenge is structural: the supply chains that produce imitation goods at scale operate across more jurisdictions, involve more intermediaries, and move faster than enforcement frameworks were designed to address.
The goal for rights-holders is a chain of custody that is legible from the start, built in advance rather than reconstructed afterward. That is not primarily a legal problem. It is a strategic one, and it is the same problem the infringer is already solving on the other side of the market.
Key References
Star Athletica, LLC v. Varsity Brands, Inc., 580 U.S. 405 (2017) | Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844 (1982) | EUIPO, 2023 (deliberate counterfeit purchase data) | FICCI CASCADE-TARI, Consuming the Illicit (2024) | FICCI MASCRADE Report (2019) | CRISIL-ASPA State of Counterfeiting in India (2022 and 2025) | Perry et al. v. Shein Distribution Corp. (settled) Territorial-IP | Customs-Recordal | IP-Strategy-Fashion | IP-Policy | Brand-Protection | Design-Rights | Trade-Marks-Act-1999 | Copyright-Act-1957
