The decision has already generated excitement in the intellectual property circles. Yet its implications run far deeper than a perfumed tyre. The fashion and luxury sectors now stand on the cusp of a sensory revolution. When the law agrees that a scent can signal source, the fashion world ought to sit up. Because fashion has flirted with sensory branding for decades. This is the first time Indian law has decided to flirt back.

The Legal Road to Roses

The Trade Marks Act, 1999 defines a trademark as something capable of graphical representation and capable of distinguishing one person’s goods or services from another’s. The definition is inclusive. Shapes. Packaging. Combinations of colour. Nothing in the wording prohibits scents. The practical barrier has always been representation. How does one graphically depict a smell.

Sumitomo’s application cleared that obstacle with science. The matter was referred to an amicus and then to three professors at IIIT Allahabad who devised a seven-dimensional olfactory vector for the rose scent. Intensity values were assigned to seven recognised olfactory categories. Floral. Fruity. Woody. Nutty. Pungent. Sweet. Minty. A scent fingerprint was created. The Registry accepted this as a valid method of graphical representation.

The second barrier was distinctiveness. A scented tyre carries no functional advantage. It does not improve performance. It does not influence durability. The scent is arbitrary. In trademark law, arbitrariness is gold. The Registry concluded that the rose scent could indeed function as a badge of origin. The application was accepted for advertisement.

A first in India. A serious moment for trademark jurisprudence. And an open invitation for the fashion industry to rethink the sensory palette of brand identity.

The Fashion Sector and Sensory Identity

Fashion has always operated beyond the visual. The rustle of silk, the cold glide of leather, the hush of a boutique lined with scented candles, the signature jasmine trail outside a couture house. Luxury is multisensory. Most of these cues remain invisible to the trademark register. They sit in the limbo between experience and enforceable rights.

The Sumitomo ruling changes the terrain. Once the registry accepts that a scent can function as a mark, every sensory artefact of a fashion brand becomes a candidate for protection. The possibilities are enormous.

• Signature scents in boutiques can become protectable identifiers.
• Perfume and cosmetics houses can attempt to register olfactory signatures that define their brand heritage.
• High fashion brands can protect the scent of leather treatments or fabric finishes.
• Retail giants and hospitality chains can explore ambient scent marks that create consistent consumer recall.
• Designers experimenting with scented packaging, resin infused fabrics or botanical textiles can claim distinctive identity in the very chemistry of their product.

This is not science fiction. It is the natural extension of the reasoning that allowed a rose scented tyre to enter the register.

The Jurisprudential Tension

The attractive charm of sensory marks must not distract from the real difficulties that lie ahead. Enforcement of a smell mark is not for the faint-hearted. Variation in human perception. Environmental factors that degrade smell. Consumer recall studies that are messy to conduct. Chemical analysis that requires expert testimony and standardised protocols.

There is a larger risk. If the registry begins granting protection to scents that are too generic or too expansive, the market may be caught in an overreach where common sensory elements become monopolised by a few. Fashion thrives on reinvention. A heavy-handed approach to scent marks may stifle rather than encourage creativity.

The seven dimensional olfactory vector created for the Sumitomo mark is a sophisticated attempt to avoid ambiguity. It may not always succeed. A future mark may not be as easy to fingerprint. The floral family is large. The risk of litigation over “rose adjacent” scents is high. Consumers do not perceive scent with the precision of chemists. Courts will be forced into territory where law and neuroscience collide.

Yet this is how jurisprudence matures. One difficult case at a time.

International Glimpses

Other jurisdictions have smelled the trade-marks before with mixed success. The European Union once accepted the scent of freshly cut grass for tennis balls. The United States entertained applications for bubble gum scented oil and floral scented lubricants. Many of these were later withdrawn or allowed to lapse because graphical representation and consumer perception remained slippery hurdles.

India’s registry has now taken a more technology driven approach. If olfactory science can reliably map scent into vectors, the path to recognition becomes smoother. This may position India as the jurisdiction most willing to experiment with non conventional marks. It may also nudge other countries to revisit their rigid graphical representation requirements.

For global fashion houses, this creates an interesting inversion. India may become the first port of call for scent mark protection. The centre of gravity in fashion IP may shift slightly eastward.

Creative Possibilities for Fashion

If fashion embraces sensory marks, the industry could move toward a future where brand identity becomes an immersive experience. Imagine:

• A couture house registering the signature scent used to treat its archival leather.
• A jewellery brand claiming rights over the subtle metallic-warm scent of its boutique interiors.
• A luxury shoe brand protecting the cedar-oil aroma embedded in its packaging.

Brand identity becomes atmospheric. Consumers identify a brand not only with what they see but with what surrounds them. Fashion houses have always curated these sensory landscapes. Now they may finally have the legal vocabulary to claim them.

What Fashion Lawyers Should Prepare For

This new world demands a shift in legal thinking. IP lawyers must collaborate with perfumers, chemists, atmospheric designers and material scientists. Filing strategies must include olfactory analysis. Enforcement strategies must include testing protocols. Brand strategy teams must recognise that sensory cues are not embellishments but assets.

The regulatory apparatus will need to evolve too. The Trade Marks Registry may need scent labs, advisory boards and updated manuals for examining non conventional marks. Litigation at the High Courts may require expert commissioners equipped with scientific apparatus rather than simple visual comparison charts.

Fashion law will no longer be confined to fabrics, silhouettes and logos. It will engage with chemistry, molecular signatures and consumer cognition. The field becomes richer and more demanding.

India’s first smell mark is not a quirky footnote about fragrant tyres. It is a sign that trademark law is ready to embrace the layered, textured, sensory universe in which fashion operates. The legal system has taken its first step toward recognising brand identity in all its multisensory complexity.

For fashion, this moment is ripe with possibility. Brands that are serious about identity should begin cataloguing the sensory elements that already define their aesthetic. Lawyers should begin preparing the evidentiary foundations for marks that cannot be sketched or photographed but can be felt, inhaled and remembered.

In an age where every label competes for attention, the strongest brands may soon be the ones consumers recognise with their eyes closed.

The post The Scent of a Trademark: India’s First Smell Mark and the Future of Sensory Branding in Fashion appeared first on Fashion Law Journal.

For the fashion industry, five of the seventeen product categories carry particular weight: textiles, leather, plastics, cosmetics, and packaging materials. Together, they frame the legal fabric of fashion – covering everything from fibres and fabrics to the creams and cartons that sustain its retail aura. It is here that the Ecomark finds its most visible runway, determining whether sustainability on the label translates into responsibility in production.

Readers expecting a modest regulatory update may find instead that the law has slipped into something more elaborate. The Ecomark Rules, 2024, glide through India’s statute book like couture: stitched in legalese, hemmed in sub-clauses, and accessorised with committees. What began in 1991 as an earthen token of ecological virtue has returned lacquered in digital sheen and bureaucratic embroidery.

The Second Coming of the Pot

The Ecomark Rules, 2024, mark the formal reintroduction of India’s environmental labelling system. This statutory grounding situates the Ecomark within the country’s broader environmental regulatory framework and underscores its transformation from a symbolic scheme to a structured, rule-based certification process.

In its reincarnation, Ecomark has traded its idealism for architecture. The CPCB, assisted by the BIS, now dictates who may claim to be green. Seventeen product categories – from soaps and detergents to textiles and electronics – are eligible for certification under the First Schedule. Each must first possess a BIS licence or a Quality Control Order (QCO) certificate and then comply with the general and product-specific environmental criteria under Rule 4 – covering reduced emissions, recyclability, resource efficiency, and avoidance of toxic materials. The CPCB may evaluate, inspect, and test samples through accredited laboratories before granting certification. The Ecomark, once conferred, is valid for three years, renewable upon annual compliance reporting.

On paper, it is elegant – an administrative couture piece in sustainable shades. Yet beneath its fine tailoring runs an older thread: who controls the certification economy? When access to moral legitimacy depends on the price of verification, virtue becomes a subscription service. In that sense, regulatory capture is not merely a risk; it is the fabric itself.

Greenwashing and the Price of Proof

For fashion, this is the battlefield. Apparel and accessory brands trade heavily on adjectives – sustainable, vegan, eco-conscious – that now acquire statutory meaning under the Ecomark Rules. India’s fashion houses, luxury labels, and direct-to-consumer brands will find their sustainability claims newly vulnerable to legal scrutiny. A misleading hangtag or website blurb could invite consumer complaints, CCPA action, or reputational collapse. Compliance officers will replace copywriters as the custodians of style’s conscience.

India’s retail and fashion markets overflow with eco, vegan, organic, and sustainable labels untethered to law. The Consumer Protection Act, 2019, under Sections 2(28) and 2(47), already prohibits misleading advertisements and unfair trade practices. But until now, it lacked a definitive benchmark in the realm of eco labelling. With the Ecomark Rules, any environmental claim must now be measurable against a government-backed standard. This transforms moral assertion into legal liability.

The new regime also dovetails with the Advertising Standards Council of India (ASCI)’s guidelines against greenwashing, fortifying consumer law with procedural teeth. When proof becomes purchasable, the label ceases to be armour; it becomes a leash.

The International Weave

For the global fashion trade, this framework sets the stage for a cross-border compliance economy. Indian textiles and leather exports – often flagged for environmental risk – can now parade Ecomark alongside GOTS or OEKO-TEX to access premium markets. Yet this alignment also sharpens inequality: conglomerates can afford multiple certifications and glossy sustainability reports, while craft clusters and small ateliers struggle to pay the entry fee for credibility.

In comparing the new rules with the original 1991 Ecomark scheme, the differences are striking. The earlier version was a fragile framework of moral aspiration – light on enforcement and silent on lifecycle impact. The 2024 Rules, by contrast, weave modern environmental policy into the regulatory fabric, expressly introducing ideas such as the circular economy, resource efficiency, and life-cycle analysis. This evolution reflects India’s shift from symbolic sustainability to systemic accountability, turning what was once a voluntary badge of honour into a potential blueprint for environmental governance.

Rule 8 introduces a provision for mutual recognition of international eco-labels, such as GOTS, OEKO-TEX, and the EU Ecolabel, allowing Indian producers smoother access to foreign markets under trade regimes like the EU Green Claims Directive and Carbon Border Adjustment Mechanism (CBAM). It is a diplomatic stitch in global sustainability, but one that could unravel domestically. Large corporations can afford the luxury of multi-certification; artisans and MSMEs cannot. What was conceived as a democratic eco-label may end up reinforcing commercial hierarchies – the globalisation of virtue at a local cost.

The Philosophy of Revival

To its credit, the 2024 Rules replace the defunct 1991 scheme with a system attuned to contemporary realities. They explicitly align with India’s Mission LiFE (Lifestyle for Environment) initiative, promote circular economy principles, and integrate life-cycle analysis and resource efficiency into law. Yet they also inherit the spirit of bureaucratic idealism that has long defined Indian policymaking: moral ambition folded into administrative excess.

The Ecomark’s philosophy is no longer just about ecology – it is about legibility. The State now seeks not only to encourage virtue but to document it. Sustainability, once a matter of ethics, is becoming a matter of evidence. Even virtue, it seems, must pass through a portal.

Implications for Law and Business

For intellectual property, the Ecomark introduces new terrain. Classified as a certification mark under the Trade Marks Act, 1999, it distinguishes goods certified for environmental performance rather than commercial origin. Unlike trade marks, which identify ownership, certification marks verify conformity. The Ecomark thus becomes both a compliance credential and a commercial asset.

For businesses, this means rethinking product design and supply chain management to embed sustainability from conception to disposal. Certification will influence mergers, acquisitions, and due diligence, as Ecomark credentials may now be viewed as indicators of good governance.

The Seam Between Law and Fashion

The Ecomark’s revival arrives at an odd intersection: where the language of couture meets the grammar of compliance. For the fashion industry, long sustained by narrative, emotion, and texture, the new order demands something colder – verification. Yet perhaps this is what modern luxury requires: truth that can be audited, ethics that can be stamped.

If the 1991 Ecomark was India’s attempt to moralise consumption, the 2024 revival seeks to institutionalise it. It turns the hangtag into a contract, the label into a legal statement. Whether this system uplifts or ensnares the industry will depend on who controls its definitions of virtue: the artisan or the algorithm, the craftsman or the committee.

In the end, fashion’s fabric is not only cloth but confidence – and Ecomark, in all its bureaucratic velvet, reminds us that even conscience now comes with certification.

References

Central Pollution Control Board (CPCB) (2024) Eco‑Mark Scheme Information Portal. Ministry of Environment, Forest and Climate Change, Government of India. Available at: https://cpcb.nic.in (Accessed: 7 October 2025).

Government of India, Ministry of Environment, Forest and Climate Change (2024) Notification: Ecomark Rules, 2024 under the Environment (Protection) Act, 1986. Press Information Bureau, 26 September. Available at: https://pib.gov.in (Accessed: 7 October 2025).

Indian Chemical Regulation (2024) New Ecomark Rules Published by the Ministry of Environment, Forest and Climate Change to Promote Eco‑Friendly Products and Sustainable Living. Available at: https://indianchemicalregulation.com (Accessed: 7 October 2025).

The post Green is the New Law: Fashion, Virtue, and the Ecomark Bureaucracy appeared first on Fashion Law Journal.

As a child, I used to hum the immortal Raj Kapoor–Mukesh anthem, “Mera joota hai Japani, patloon Inglistani, sar pe laal topi Roosi, phir bhi dil hai Hindustani” – my shoes Japanese, trousers English, red hat Russian, yet my heart proudly Indian. Years later, in adulthood, when I first encountered the concept of “Geographical Indications” in IP law, that lyric came rushing back as the perfect metaphor. It made me wonder: if we can pin nationality on tea leaves and silks, why didn’t the song wink at the most precise of all GI‑tagged creations- watches, those tiny diplomats of place and precision.

I wear many hats; two of them are being an IP lawyer and an unapologetic watch tragic. I haven’t yet torched a fortune on horology, but I do own a small troop of timepieces marking the mile‑markers of my life, each acquired according to the weight of my bank account at the time. When I finished at Imperial College London, I rewarded myself with a proudly “British” Sekonda; more recently, a dear friend surprised me with a decidedly “Swiss” Raymond Weil, and yet another friend gifted me the very “Japanese” Seiko metronome. Every watch in my collection I tag by its birthplace – or at least by the homeland of its beating heart, the movement itself. To mark a recent professional milestone, I treated my team to a splash of Nordic minimalism – Scandinavian watches from Nordgreen. 

In wine, it’s terroir. In cheese, it’s the pasture. In horology, it’s the steady tick of a town’s – or sometimes an entire culture’s – history. And just as my own little collection is a tour of national identities, the world’s great watchmakers have pulled off something rare for an industrial craft: they’ve turned place itself into a legal shield. These are the geographical indications of time-labels of origin that make a watch not just a product, but a passport, echoing the personal geography of my own wrist. 

Switzerland: Where “Swiss Made” is a Statute [and not a marketing slogan] 

I would start at the obvious pole star. Swiss Made is no marketing fluff; under the 2017 Swissness legislation, at least 60 per cent of a watch’s value must be created in Switzerland, its movement cased and inspected there for it to be tagged or labelled – “Swiss Made”. Misuse is actionable worldwide. It’s the Champagne of timekeeping, a legal moat that every Geneva boutique quietly thanks.

Inside Switzerland, the walls narrow further. The Poinçon de Genève, or Geneva Seal, dates back to 1886. Only movements finished and assembled inside the canton – and polished to an obsessive standard – may carry its tiny coat-of-arms. My current favourite Raymond Weil bears the “Geneve” tag – essentially micro-GI within a macro-GI. 

Germany: The Saxon Counterpoint

It was, strangely, in Stockholm that I encountered a Glashütte for the first time, and then I traced its history. Two world wars and a communist interlude couldn’t kill the pride of Glashütte in Saxony. Today, “Made in Glashütte” is a protected collective mark (under what is termed the Glashütte ordinance). German courts insist that at least half the movement’s value must be born there. Nomos and A. Lange & Söhne build their balance wheels not just to keep time, but to prove lineage. 

France: The Viper’s Head of Besançon

At the old French observatory in Besançon, chronometers that pass testing earn a tiny stamp: a coiled viper’s head. It isn’t technically a WTO-style GI, but it is state-recognised and origin-locked. The French courts, together with the INPI (National Institute of Industrial Property, France), have treated the Viper’s Head chronometer certification as a protected appellation in enforcement actions. A French nod to precision that predates the smart-watch by a century. Pascal Coyon, LIP, and Utinam are a few popular watches from this French city dedicated to horology, and many of their watches bear the popular viper logo. 

Britain and Japan: Certification as Proxy

Britain’s Horological Institute runs a “Made in Britain” certification mark; think of brands like Bremont and Garrick, proudly building their own movements and using that badge as a calling card. UK courts have also weighed in on the misuse of certification marks – cases like Scotch Whisky Association v. Klotz illustrate how the judiciary protects GI-like designations, even outside the food and drink sector, a principle that underpins similar protections for horological marks. Japan’s Chronometer Inspection Institute offers a national “Japan Chronometer” label – long associated with the precision of Grand Seiko and Citizen’s high‑end chronometers. Neither is codified like wine law, but both function as GIs in the market: proof that the mechanism beating inside is native, not merely assembled.

Why This Matters

These regimes are more than quaint badges. They are legal frameworks that turn geography into brand equity and enforcement muscle. A GI makes “where” part of the “what”: it gives the slow art of horology the same kind of territorial dignity as Darjeeling tea or Parma ham.

India, by contrast, has no such protection. HMT’s vintage factories in Bangalore and Titan’s giant Hosur campus never claimed a GI; the law of place never met the art of time. In a country whose regulators are otherwise obsessively watchful, it is an oddly unguarded silence.

What’s Next for GIs in Horology

The EU has now adopted Regulation (EU) 2023/2411 extending geographical indications to craft and industrial products, effective December 2025. This opens the door for watchmaking towns to seek EU‑wide GI protection. Germany’s national protection for “Glashütte” will lapse in December 2026 unless it migrates into the EU GI system, making it the most likely early filing. Expect similar moves from Swiss cantonal marks such as the Geneva Seal (even though Switzerland is outside the EU, its watch industry may leverage bilateral arrangements) and from French centres like Besançon once the EU register is live.

These upcoming filings would give collectors and lawyers alike a new playground: GI protection for watches will mean union‑wide enforceability of origin claims, complementing trademark and certification mark regimes.

The Last Tick

Fashion lawyers often chase the next NFT or blockchain certificate. But the oldest provenance tech is still geography itself. In watches, as in wine, the law has found a way to bottle time and sell the scent of a city. The dial tells you the hour; the GI tells you where that hour was born.

The post GIs of Time: How the World’s Watchmakers Turn Geography into a Trademarked Tick appeared first on Fashion Law Journal.

The global counterfeit industry is a $467‑billion illicit trade $467 billion illicit trade. In fact, clothing, footwear and leather goods account for roughly 62% of counterfeit items seized worldwide. Given today’s globalised supply chains, falling costs of running global supply chains, driven by technology, has made counterfeit trading a global cross-border phenomenon [1].

This flood of fakes erodes revenues, damages brand value, and occasionally slaps toxic dye onto your skin in the name of “discount couture.” As commerce becomes more digital and global, counterfeiters exploit online marketplaces and international shipping to reach customers. Around 65% of seizures now involve small parcels in mail or courier channels – the preferred route for e-commerce knock-offs. Faced with this threat, governments are stepping up intellectual property (IP) enforcement at the borders.

John Lennon famously crooned, “imagine there’s no countries,” but – sorry John- there are countries, there are borders, and there are counterfeits; a reality that makes customs agents fashion’s unlikely front-row VIPs.

Border Enforcement: Fashion’s Frontline Defense

Border enforcement of intellectual property rights means customs officers detect, detain, and seize goods infringing trademarks, copyrights, or registered designs as they cross a country’s borders. The toolkit includes:

• Customs recordal: pre-registering IP rights so officers know what to look for.
• Risk-based inspections: using data analytics to flag suspicious shipments.
• Rights-holder collaboration: brands train customs to spot fakes and confirm seizures.

This is where fashion law meets frontline defence – and the stakes are very real. In this article, I intend to discuss border controls in major jurisdictions.

India: From Runway to Border Check

India’s fashion scene is booming and so is the traffic in counterfeits. To fight back, India deploys a solid legal and enforcement framework across trademarks, designs, and copyrights:

• Trademarks Act 1999: names, logos, slogans – even handbag shapes- can be registered.
• Designs Act: protects product aesthetics such as dress patterns or textile prints for up to 15 years.
• Copyright Act: shields original artistic works like fabric prints or sculpted jewellery.

Customs in Action

Under the Customs Act and IPR (Imported Goods) Enforcement Rules, 2007, Indian Customs can seize both imports and exports of fake goods. Brands record their rights via an e-filing portal, upload product images and identifiers, and train officers. Once a shipment is flagged, officials notify the brand, confirm the counterfeit, and destroy the goods.

Case in point: Chennai Customs recently confiscated 12,000 pairs of fake Nike, Adidas, and Reebok shoes smuggled from China and falsely declared as “unbranded purses,” a haul worth about ₹3.5 crore (≈ USD 420,000) [2].

E-commerce makes detection harder – fakes increasingly arrive in low-value courier parcels. But India’s Consumer Protection (E-Commerce) Rules, 2020 now require online platforms to clamp down on counterfeit listings.

India’s enforcement tools are sharp, but brands must record rights, assist Customs, and monitor their supply chains. Border vigilance is no longer optional.

United States: Fashion’s Frontline Bouncer

U.S. Customs and Border Protection (CBP) is the industry’s de facto bouncer. Counterfeit fashion – handbags, jewellery, apparel – is consistently one of its top seizure categories.

Under the Tariff Act, CBP can detain and seize goods infringing registered trademarks or copyrights. A quick, low-cost e-recordation process empowers officers to flag fakes. Once a shipment is confirmed counterfeit, CBP seizes and literally incinerates the goods.

Criminal penalties bite hard: up to 10 years in prison and $2 million in fines for trafficking in counterfeits.

By the numbers:

• August 2025: CBP in Louisville seized 7,000 pairs of counterfeit Van Cleef & Arpels earrings, fake retail value $30.37 million, shipped from Hong Kong [3].
• 2021: CBP at the L.A./Long Beach Seaport intercepted **13,586 counterfeit luxury items – **Gucci, Chanel, Fendi, YSL, Louis Vuitton – in a Homeland Security joint operation [4]

With fast-track recordation, zero-cost enforcement for brands, and stiff criminal penalties, CBP shows how border enforcement can evolve with the times. Not just a fashion faux pas – it’s a felony with accessories.

European Union: A Unified Front

Nothing ruins a Paris Fashion Week debut like your design debuting early – on a fake tote. The EU operates one of the world’s most streamlined border-IP regimes.

• Regulation (EU) No. 608/2013 lets a brand file a single Application for Action (AFA) with any member state; the notice then covers all 27 EU countries.
• Customs may act at the brand’s request or ex officio, making the system proactive.

Scale: In 2022, EU customs detained 86 million counterfeit items worth over €2 billion [5]. Many counterfeiters try to import parts separately – blank handbags and fake logos – to assemble later. France and Germany now target postal centres, where small-parcel fakes flood in.

The EU also works with online platforms to curb fakes before shipment. Agencies like OLAF and the EU IP Observatory coordinate cross-border actions and intelligence.

United Kingdom: Post-Brexit Parallels

Since Brexit, the UK runs its own system, closely mirroring the EU model but managed by HM Revenue & Customs (HMRC) and UK Border Force.

• Rights holders file a UK-specific AFA.
• Customs may detain suspect goods ex officio and follow a simplified destruction procedure unless the importer objects.

In 2023, UK Border Force seized nearly one million counterfeit goods worth about £200 million[cite]. Strong consumer demand and complex supply chains make customs enforcement an essential bulwark.

China: Strengthening Border Enforcement

China remains the world’s top exporter of counterfeit fashion – but it’s also stepping up enforcement as it builds an IP-driven economy.

• The General Administration of Customs (GACC) allows rights holders to record trademarks and copyrights so officials can detain fakes request-based or ex officio.
• Confirmed fakes are seized and destroyed; large-scale cases can trigger criminal investigations.

Recent national crackdowns combine data-sharing with courts, faster injunctions, and tighter monitoring of cross-border e-commerce parcels. Many brands now train Chinese customs to distinguish real from fake and avoid accidental seizures of legitimate shipments.

The Micro-Parcel Challenge

Counterfeiting has gone micro: tiny parcels, global headaches.
Traditional customs controls were designed for container loads, not a blizzard of low-value e-commerce shipments. Agencies now:

• use advanced analytics to target suspicious small parcels,
• raise scrutiny on “de minimis” shipments once waved through, and
• partner with online platforms to stop fakes before they ship.

International cooperation is critical: a seizure in one jurisdiction often provides intelligence for the next.

The Take-Home for Fashion Brands

Border enforcement is no longer a side show. It’s core strategy:

• Record your IP with customs in every key market.
• Train officers to spot your products and typical counterfeits.
• Monitor digital listings and shipping trends to anticipate new smuggling tactics.

Fake fashion doesn’t slow down – so neither can your enforcement. After all, what’s the point of haute couture if it arrives in bubble wrap from a Shenzhen back alley?

References:

1 Counterfeit and pirated goods | OECD

2 12,000 pairs of fake branded shoes seized | Chennai News – Times of India

3 $30 million in counterfeit jewelry seized by Louisville CBP | U.S. Customs and Border Protection

4 The Truth Behind Counterfeits | U.S. Customs and Border Protection

5 86 million fake items with a value of more than EUR 2 billion detained in the EU in 2022 – EUIPO

The post From Catwalk to Customs: Fashion’s Global Border Patrol appeared first on Fashion Law Journal.

DISCLAIMER: It’s said Lewis Carroll was tripping when he wrote Alice in Wonderland. Fashion in Wonderland is my sober, legally compliant attempt to prove that you don’t need hallucinogens to write the utterly bizarre.

The world I knew has gone for a toss. AI, gene editing, robots, drones, driverless cars – we are effectively living at the entrance to the future. Imagine humanity has just got on the yellow brick road and is marching towards Emerald City. This brings to mind Taupin’s lyric about bidding goodbye to the yellow brick road and “going back to my plough,” sung by Elton John – a line drenched in nostalgia. But unlike Taupin, we no longer have the luxury of bidding farewell. Humanity has traded the round-trip ticket for a one-way ride into patentable absurdity.

And of all the things I could panic about – climate collapse, rogue AI, lab-grown political parties – I’ve decided to focus on fashion. This likely confirms, to my readers, that while the world burns, I’ll be found fussing over pleats and patents or pondering whether bioluminescent eveningwear is back- and if so, where are its core patents?

In this article, we won’t just talk about any fashion, but bioengineered, mood-swinging garments that may outlive, out-think, or out-snitch us.  Garments that might be co-defendants in future lawsuits or worse, demand royalties.

This piece is a lovingly and cynically embroidered legal hallucination- stitched together with wild conjecture, reluctant logic, existential dread, and a flair for drama.

The State of the Art and Law:

We’ve seen mycelium leather like Fleather by Phool, spider silk proteins from Kraig Biocraft Laboratories, and MIT’s bioLogic project with garments that react to sweat.

We now have “functional textiles” – fabrics adapting to body, climate, and maybe one day, emotion. What happens when we try to drape centuries-old IP frameworks over shapeshifting second skin?

Suppose a designer instructs an AI to generate genetic sequences for a self-cleaning fabric. The AI outputs a blueprint. A lab synthesises it. The result? A photosynthetic dress that converts sunlight into smugness.

So, who owns what? The designer? The algorithm? The scientist?

So far, across the world, DABUS as well as Thaler have lost the battle to “composite ownership” and/or “composite inventorship” – where a non-human bits and chips, aka computer, is listed as co-owner or co-inventor. As of now, the two humans who tried have taken the beating, but the humans would demand that the systems and products to which they “lend” their inventive capabilities and processes – should be given ownership and inventorship rights so that they and their estate continue to own the patents well into the future – long after they have ceased to be [just like John Keats continued to earn royalties for his poem titled so]. So far, these privileges are accorded to copyright owners.

Traditionally, counterfeiting meant knockoffs. In living fashion, infringement could be reverse-engineering a patented E. coli strain to create jackets that glow to music, smell like Moschino’s retired perfume, and hum Uyire. Is it piracy? Biopiracy? Unauthorised bio-theatre?

See the OG biopiracy lawsuit, Monsanto Co. v. Bowman, 569 U.S. 278 (2013) – planting patented seeds counted as unauthorised reproduction. Now, imagine that doctrine applied to a coat regenerating via spores.

The Fashion in Wonderland:

If you’re wondering whether this is real science or a discarded draft of some science fiction Netflix series, here’s a diagram from a research paper titled “Fungal Engineered Living Materials” by scientists at Newcastle and Northumbria.

Vogue in 2022 featured an article titled “Meet the Creative Who Helped Grow Living Plants on Clothes for Loewe,” with models wearing clothes with trees growing on them.  Vogue, again in 2022, featured another article titled: “Living, breathing, wearable plants?”- a piece on Biocouture – Bacterial garments.

Now with my “biotechnologist hat” on- if a garment self-repairs, it needs to be fed. That means metabolism, sweat, skin cells, and carbon pollution. Your shirt is a climate activist. It devours smog and emits faint musk.

Conductive threads, edge-AI, mood-reactive design- imagine garments reacting to tone, tears, UV levels. Shy? Your scarf cocoons. Angry? Your trench flares like Goku.

We’re still far from sentient coats- but I don’t rule out a Dr. Strange robe in 20 years.

We’re not far from a world where jackets shed skin and handbags need feeding. Garments that breathe, decay, and might even gossip via pheromonal signaling – which is very much possible by layering a pheromone that reacts to your bodily function or secreted fluid and then the reaction is “caught red handed” in action via some electric signalling captured via some conductive threads whose change in electric potential combined with AI-enabled mood detections – releases a switch that turns on an actuator to spray a perfume.

I am already writing a claim: “A method of emotion-responsive olfactory expression via wearable textile-integrated biosignal processing units.”

The Undoing of the Legal Framework:

The law always plays catch-up. It waits for society to adapt, moral standards to crystallise, then lumbers in with regulation.

The current legal system hasn’t even resolved today’s fashion law dilemmas. When the above fantasies come to life, we’ll be legally underdressed. The law is still figuring out whether AIs should be given inventorship credits; whereas we must ask the legislators to set the standards of AI with whom the inventorship credits may be shared; and ownership rights be added to. However, so far, that question has been swept under the rug; but the human creativity, like stupidity, is boundless; while stupidity is contained by its own accord, the creativity has to be stewarded, codified and recognized for it to thrive, and the law must embody the living garments that are coming in future and have some answers ready.

References

Bowman v. Monsanto Co., 569 U.S. 278 (2013).

MIT Media Lab. (2015). bioLogic: Transforming Materials with Bacteria. Retrieved from https://www.media.mit.edu/projects/biologic/overview/

Phool.co. (n.d.). Fleather. Retrieved from https://www.phool.co/

Kraig Biocraft Laboratories. (n.d.). Retrieved from https://www.kraiglabs.com/

Jones, M. et al. (2022). Fungal Engineered Living Materials. Nature Communications. Retrieved from https://www.nature.com/articles/s41467-022-29571-3

Vogue. (2022). Meet the Creative Who Helped Grow Living Plants on Clothes for Loewe. Retrieved from https://www.vogue.com/article/loewe-living-plants-fashion

Vogue. (2022). Living, breathing, wearable plants? Inside the rise of biocouture. Retrieved from https://www.vogue.com/article/biocouture-living-clothing

Thaler v. Commissioner of Patents [2021] FCA 879 (Australia); Thaler v. Hirshfeld, No. 1:20-cv-00903 (D.D.C. 2021).

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“This stuff…. Oh, okay. I see. You think this has nothing to do with you. You go to your closet and you select… I don’t know… that lumpy blue sweater, for instance, because you’re trying to tell the world that you take yourself too seriously to care about what you put on your back.”

The opening phrases set the stage for Priestly to deliver master class on how the fashion business works and thereby, in a way, exposing the cracks in fashion law. Andy called the clothes that she was picking as “stuff”; thus, denying them of any value, and that the whatever value the “stuff” had is being ascribed by some mental and PR gymnastics; thus, completely ignoring the complex creative, commercial and cultural machinery that it took to build the “stuff”. This is akin to how courts are likely to treat fashion – merely clothing and not as an “expression”.  

Priestly then changes track and sets the stage for dismissing the myth of fashion being elective and that her selection is shaped by her behaviour and that fashion has no power to shape the behaviour. Fashion doesn’t and cannot exist outside the world of power, capital and law. Most of the men’s current clothing styles are direct descendants of army chiefs and political leaders making a choice of colour, fabric and purpose, on behalf of millions of soldiers in the World Wars, from t-shirts to trench coats. 

Thus, there is a stamp of certain authorship on a fashion product; yet this credential gets lost or dismissed as consumerism. Fashion is never authored alone. It is a product of distributed agency—where stylists, trend forecasters, fabric suppliers, cultural moments, and even viral reels quietly co-author the final look. Yet, the law remains obsessed with the myth of the solitary designer, blind to the aesthetic labour diffused across an invisible network.

“You go to your closet and you select… I don’t know… that lumpy blue sweater, for instance, because you’re trying to tell the world that you take yourself too seriously to care about what you put on your back.”

Priestly basically tells Andy that clothes are form of expression – she wears “lumpy blue sweater” to express a certain value of hers to the world. 

The law recognizes expressive works when creator intends to create but fashion also works by influence and unconscious selection, where the law usually plays a catch up or not at all. The influence in fashion is basically an “accidental authorship”. Could this exist in law? 

“But what you don’t know is that that sweater is not just blue. It’s not turquoise. It’s not lapis. It’s actually cerulean. “You’re also blithely unaware of the fact that in 2002, Oscar de la Renta did a collection of cerulean gowns. “

Now, Priestly, in her signature condescending style, points to Andy that what she is wearing isn’t blue but cerulean; thus, bringing importance of colour and branding in fashion world. Yet, copyright law doesn’t quite protect colour and trademark law protects it in severely narrow manner [e.g., Louboutin Red, Tiffany Blue, Barbie Pink] and how the law, apart from protecting the Geographic Origins of a fashion product [via Geographical Indications] doesn’t quite protect the “Designer Origins” of a fashion product. In fact, Louboutin shows the painful lengths required to protect even a singular branding element.

Design law protects visual expression, and fast fashion is expert in dodging those rights. Unlike, in other IP rights such as in patents – where first to file wins or their inventorship travels across all the licences or sub-licences –  unfortunately the fashion designers are accorded no such exalted position in the law.  

“…And then I think it was Yves Saint Laurent, wasn’t it, who showed cerulean military jackets?”

She further informs Andy and the audience that how fashion is an iterative process between several designers who collaborate – From Oscar to YSL – how cerulean – when appeared in certain aesthetics, through collaboration, got established or got onto trends. Essentially, in fashion, design is always moving between original creators – who routinely create – while sticking to the “theme of a design” – there is no fixed moment of authorship; and somehow law doesn’t quite recognize that. 

“And then cerulean quickly showed up in the collections of eight different designers.”

The moment when the dilution or diffusion of cerulean started. This trickle-down effect of trend is not protected in law via royalties or moral rights or residues. Music sampling has royalties, fashion sampling or aesthetic sampling has none. 

“And then it filtered down through the department stores and then trickled on down into some tragic Casual Corner…”

By the time, the artist’s fashion reaches fast fashion, it’s decontextualised, depersonalised, and democratised — often at the cost of the original vision. In this, the multi-billion dollar brands win and artists – they lose. They copy the silhouette, change patterns a little, and lower the price. If you sue these brands, then law is likely to state “not substantially similar” – basically the brands must steal more for artists to get recognition. These global fast-fashion brands are proof that influence without attribution is now a business model.

“…where you, no doubt, fished it out of some clearance bin.”

I singled this phrase out of the entire monologue since it points towards end of authorship at the point of sale – or how law or society perceives fashion at large. Yet, the law doesn’t quite recognize that fashion is more of a “broadcast”, an “abstraction”, a “vibe” and not really a product and that looks are first set – by an artist- and then sold. The look or vibe, unfortunately, cannot be owned. 

“However, that blue represents millions of dollars and countless jobs.”

Priestly then reminds Andy that fashion is economics – it is infrastructure, it is capital, and it is very much human given the money and humans involved in this industry. Aesthetics drive the industry, but the law demands industrial-grade precision – killing the very ambiguity that makes fashion seductive. The artists who shape the desire are unable to shape profits. 

“And it’s sort of comical how you think you’ve made a choice…”

Priestly brings us all back to the classical dilemma of having a free will and the illusion of choice. Essentially, one way to look at fashion and rights landscape is that in fashion, the agency is highly distributed and that law doesn’t recognize or isn’t ready for “distributed agency” and accord them rights in accordance with their agency. Music industry has smartly captured this distributed agency to large extent but that is also due to music being able to generate “repeatable and recognizable modules”, which don’t exist in fashion, since what exists is “look” or “vibe”. Star Athletica is what happens when the law treats clothing like cardboard cutouts.

“…when in fact, you’re wearing a sweater that was selected for you… by the people in this room.”

Priestly brings her arguments to close by stating how fashion, at the end, is a narrative monopoly and tightly controlled strategy despite all the cracks in the law to recognize its unique landscape. The room, in which people decide what we wear, the law is yet to enter that room. 

The monologue, in essence, opens Pandora’s box, and to me, now as a lawyer, it doesn’t just lampoon Andy’s conceited naiveté, it quietly mocks society’s and by extension law’s abysmal grasp of fashion itself. It is a lament from a high priestess of aesthetic value who is frustrated that society, and more damningly, the law, still doesn’t “get it.” Years after first watching it for Meryl Streep’s brilliance, I now hear in Miranda Priestly’s voice the unspoken ire of every creator whose vision is too fluid, too collaborative, or too “vibey” for legal protection. This is because law mistakes fashion for frivolity, which not only puts it out of touch but also out of depth for law’s interpreters and enforcers; thus, stopping them from shaping a framework that recognizes these cracks and provides a solution.

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The post The Devil May Wear Prada, But Law Doesn’t Wear Fashion: Deconstructing Priestly’s Anguish at Fashion and Law appeared first on Fashion Law Journal.