If you are stuck in such a situation, here is what to do.

A recent incident has brought a critical issue to the forefront: a community of traditional artisans from the historic town of Shindpur discovered that their unique, handcrafted footwear, a design passed down through generations, was being sold by a major international fashion house, “Global Vogue,” for an exorbitant price. The global brand had slightly modified the design, rebranded it, and launched it as its own novel creation, completely erasing the Indian artisans and their cultural legacy from the narrative. This act of appropriation not only denies the rightful creators credit but also threatens their livelihood, which is intrinsically linked to their craft. This scenario raises important questions about the legal protection available for India’s rich cultural heritage and its traditional craftsmen.

Advice in such cases

When traditional designs are copied by large corporations, it can feel like an insurmountable challenge. However, Indian law provides specific tools to protect the intellectual property and heritage of artisan communities.

• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A Good lawyer can get the issues resolve in 7-10 days.
• Form a Collective: Individual artisans often lack the resources to fight a legal battle. The first step is to form a legal entity, such as an association of persons, a producers’ society, or a trust. This collective body can represent the entire community of artisans.
• Seek Geographical Indication (GI) Tag: This is the most potent weapon. A GI tag identifies a product as originating from a specific geographical territory, possessing a quality, reputation, or characteristic attributable to that origin. Once a GI is registered, no one outside that region can use the name or replicate the product.
• Register Collective Trademarks: The artisan association can also register a collective trademark. This mark can be used by all members of the association to distinguish their products and build a collective brand identity.
• Action for Passing Off: Even without a registered GI or trademark, a legal action for “passing off” can be initiated. This requires proving that the design has a reputation linked to the artisan community and that the foreign brand is misrepresenting its products as being connected to that reputation, causing damage.

Applicable Sections of Law

The legal framework for protecting such traditional crafts is primarily civil and falls under Intellectual Property Rights laws:

• The Geographical Indications of Goods (Registration and Protection) Act, 1999: This is the principal legislation for protecting goods that have a specific geographical origin and possess qualities or a reputation that are due to that origin. Section 22 provides for infringement action.
• The Trade Marks Act, 1999: Sections 61 to 68 deal with the registration and protection of Collective Marks, which can be used by an association of artisans.
• The Designs Act, 2000: While this Act protects new and original aesthetic designs, it may be applicable if artisans create new variations of their traditional patterns. However, it offers protection for a limited period and requires novelty.
• Common Law Remedy of Passing Off: This is a tort-based remedy that protects the goodwill and reputation of a business or community from misrepresentation.

If you are the complainant

If you are part of the artisan community whose design has been appropriated, here are the steps to take:

• Organize the community and form a legal association.
• Gather extensive documentation to prove the historical and geographical origin of the craft.
• If a GI tag is not already in place, apply for one immediately with the Geographical Indications Registry.
• Through a lawyer, send a strong cease and desist notice to the infringing company, demanding they stop the production and sale of the copied design and issue a public clarification.
• If the company does not comply, file a suit for infringement (if you have a registered GI/Trademark) or a suit for passing off in the appropriate commercial court. You can also seek an injunction to immediately stop the sales.

If you are the victim

As an individual artisan, your strength lies in collective action. It is nearly impossible to take on a multinational corporation alone.

• Actively participate in the community association. Your testimony is crucial evidence.
• Provide any historical artifacts, family records, photographs, or personal accounts that can help establish the craft’s legacy.
• Document any loss of business or income you have suffered due to the market being flooded with the copied, high-fashion version.
• Support the legal case filed by the association and be prepared to act as a witness if required.

How the police behave in such cases

It is important to understand that cultural appropriation and design copying are primarily civil wrongs, not criminal offenses. Therefore, the police have a very limited role. You cannot simply file an FIR for such an issue. The police will not investigate claims of design theft. Their involvement would only be required if a court issues an order, for example, to seize infringing goods, and their assistance is sought to execute that order. The entire battle is fought in civil and commercial courts, not police stations.

FAQs people normally have

• Is cultural appropriation itself illegal in India?
  There is no specific law against “cultural appropriation.” However, the negative effects of it can be combated using specific IPR laws like the Geographical Indications Act, Trade Marks Act, and the common law of passing off.
• Can’t we just use copyright?
  Copyright protects original literary, dramatic, musical, and artistic works of an identifiable author. Traditional, community-owned designs that have existed for centuries often do not have a single, identifiable author and may not qualify for copyright protection. GI is the more appropriate tool for community-owned heritage.
• What is the difference between a GI tag and a patent?
  A patent protects a new invention, granting an exclusive right to the inventor. A GI tag does not protect an invention but rather identifies a product originating from a specific place and possessing qualities of that origin. It is a collective right held by the community, not an individual.

What evidence is required?

To build a strong case, you need comprehensive evidence, including:

• Historical documents, gazetteers, travelogues, or books that mention the craft and its connection to your region.
• Photographic evidence of the craft being practiced over decades.
• Physical samples of the original product and the infringing product for comparison.
• Screenshots, catalogs, and advertisements from the infringing company’s website or stores.
• Expert testimony from historians, textile experts, or cultural scholars.
• Affidavits and testimonies from the artisans of the community.
• Proof of registration if you have a GI tag or a collective mark.

How long will the investigation take?

This is not a police investigation but a judicial process. The timeline can vary significantly. Obtaining a GI registration can take anywhere from one to three years. A civil lawsuit for infringement or passing off can be a lengthy process, often taking several years to reach a final verdict. However, a significant advantage is that the courts can grant an interim injunction at the beginning of the case. This temporary order can stop the infringing company from selling the product while the case is being decided, providing immediate relief to the artisans.

Advocate Sudhir Rao, Supreme Court of India