1. Abstract
The Delhi High Court’s 2025 decision in Crocs Inc. USA v. Bata India Ltd. & Ors. has reopened one of Indian intellectual property law’s most persistent unresolved questions: whether a product feature that is registered as a design under the Designs Act, 2000 can simultaneously be protected as trade dress through a common-law passing off action. Footwear giant Crocs had sued Bata, Liberty, Relaxo, and several other Indian manufacturers, alleging that they had copied the distinctive perforated clog shape that Crocs treats as its signature identity. A Single Judge dismissed the suits in 2019, reasoning that allowing both design and trade dress protection over the same feature would create an impermissible “dual monopoly.” In July 2025, a Division Bench reversed that view and restored the suits for trial, and in November 2025 the Supreme Court declined to interfere. This article examines the Crocs–Bata litigation as a lens through which to study the wider condition of fashion intellectual property in India. It traces the doctrinal lineage from Mohan Lal v. Sona Paint & Hardwares through Carlsberg Breweries v. Som Distilleries to the Crocs judgments, situates Indian trade dress law against the more developed American doctrine, and considers parallel controversies such as the Christian Louboutin red-sole litigation. The article argues that Indian fashion IP law remains structurally underdeveloped, caught between a design regime built for industrial novelty and a trademark regime reluctant to protect shape and colour, and it proposes legislative and doctrinal reforms to give fashion houses predictable, proportionate protection.
2. Introduction
Fashion products occupy an uncomfortable space in intellectual property law. A garment or a shoe is simultaneously a useful article, an aesthetic composition, and, for many brands, a source identifier in its own right. Indian law has never built a bespoke regime for fashion; instead, designers and manufacturers must stitch together protection from the Designs Act, 2000, the Trade Marks Act, 1999, and the residual common law tort of passing off. Each of these regimes was conceived with a different object in mind the Designs Act to reward novel ornamentation for a limited term, the Trade Marks Act to protect source-identifying marks, and passing off to prevent deceptive trading practices. Their edges rarely align neatly with the way fashion houses actually build value: through repeated use of a shape, colour, or silhouette until it becomes, in the mind of the consumer, synonymous with the brand.
The Crocs–Bata dispute crystallises this tension. Crocs registered the shape of its foam clog as a design, a registration that confers only a short monopoly, and then sought to extend protection indefinitely by characterising the same shape as trade dress entitled to common-law passing off protection. Indian courts have oscillated on whether this is permissible, producing a decade of conflicting Delhi High Court rulings before the matter reached the Supreme Court in late 2025. This article uses that oscillation as a case study to interrogate the broader adequacy of Indian fashion IP law, comparing it with more settled foreign doctrines and proposing a path toward coherence.
3. Fashion IP in India: The Existing Framework
Indian law offers fashion creators four principal, imperfectly overlapping tools. First, copyright protects original artistic works such as textile prints and sketches, but Section 15(2) of the Copyright Act, 1957 extinguishes copyright in any design capable of registration under the Designs Act once the article has been reproduced more than fifty times by an industrial process, pushing most mass-produced fashion articles out of copyright and into the design regime.
Second, the Designs Act, 2000 protects the visual features of shape, configuration, pattern, or ornamentation applied to an article, provided the design is new and has not been previously published. Registration lasts for ten years, extendable by five, after which the design falls into the public domain. This finite term reflects an industrial-design logic: the law trades a period of exclusivity for eventual public access, on the assumption that the value of a design lies in aesthetic novelty rather than accumulated goodwill.
Third, the Trade Marks Act, 1999 allows registration of “marks,” a term broad enough under Section 2(1)(m) to include the shape of goods and combinations of colours, but Indian courts have been markedly conservative about extending this to a single colour or to a product’s overall configuration, as the Louboutin litigation discussed below illustrates.
Fourth, and most relevant to Crocs, the common-law action for passing off protects the goodwill a trader has built in the “get-up” of a product its shape, packaging, and overall trade dress against deceptive imitation, independent of any statutory registration. It is this residual, judge-made remedy that fashion brands increasingly invoke once design protection lapses or proves too narrow, and it is precisely this invocation that Bata and the other defendants resisted in the Crocs litigation.
4. Trade Dress and Passing Off in Indian Law
“Trade dress” is not a term defined in any Indian statute; it has developed almost entirely through case law as an extension of the classical passing off action associated with Reckitt & Colman’s “Jif Lemon” formulation of goodwill, misrepresentation, and damage. Indian courts have gradually accepted that the overall visual impression created by a product its shape, colour scheme, and packaging can function exactly like a trademark once it has acquired distinctiveness in the minds of consumers, even where no word mark or logo is involved.
The difficulty arises when the very feature relied upon as trade dress is also the subject of a registered design. The Designs Act, 2000 was drafted to encourage disclosure of novel aesthetic features in exchange for time-bound exclusivity, and Section 2(d) of that Act expressly excludes from the definition of “design” any feature that is in substance a trademark. Indian courts have therefore had to decide whether an applicant who registers a design and then, years later, claims the identical feature as unregistered trade dress is engaging in an impermissible attempt to convert a term-limited design right into a perpetual trademark right, or whether the two causes of action are genuinely distinct because they protect different interests novelty on the one hand, source-identifying goodwill on the other.
This question first reached a large bench in Mohan Lal, Proprietor of Mourya Industries v. Sona Paint & Hardwares (2013), where a three-judge Full Bench of the Delhi High Court held that a composite suit combining a claim for design infringement with a claim for passing off could not be maintained, on the reasoning that the two causes of action rested on fundamentally different pleadings and evidentiary burdens. Five years later, a five-judge Special Bench in Carlsberg Breweries A/S v. Som Distilleries and Breweries Ltd. (2018) revisited the question in a dispute over beer-bottle trade dress and overruled Mohan Lal on the procedural point, holding that a composite suit is maintainable because both causes of action typically arise from a common set of facts. Carlsberg also affirmed, more substantively, that a passing off remedy remains available for trade dress even where the same feature is registered as a design, so long as the design is not itself being used purely as a trademark. It was this holding in Carlsberg that Crocs would later invoke, and whose scope Bata and the other defendants would contest, in the shape-trademark suits.
5. Case Study: Crocs v. Bata
Crocs Inc. USA holds registered designs over the shape, strap placement, perforation pattern, and sole configuration of its foam clog, features it describes collectively as its “Crocs Shape Trademark” or trade dress. Beginning around 2016, Crocs filed a series of suits before the Delhi High Court against Bata India, Liberty Shoes, Relaxo Footwear, Action Shoes, Aqualite, and Bioworld Merchandising, alleging that each company was selling clogs that copied this configuration and was thereby passing off its footwear as that of Crocs.
The defendants argued that the suits were not maintainable in the form pleaded, contending that Crocs could not claim common-law trade dress protection for a feature it had already chosen to register and thereby monopolise only temporarily as a design. In February 2019, a Single Judge of the Delhi High Court accepted this argument and dismissed the suits, holding that allowing Crocs to claim indefinite trade dress protection over a design already registered under the Designs Act would create a “dual monopoly” that undermines the time-limited bargain at the heart of design law, and that a plaintiff in Crocs’s position needed to show “something more” than the registered design itself to sustain a passing off claim.
Crocs appealed, and in a judgment delivered on 1 July 2025, a Division Bench of the Delhi High Court set aside the 2019 order and restored the suits for trial. The Division Bench held that it could find no statutory bar in the Trade Marks Act, the Designs Act, or in the precedents of Mohan Lal or Carlsberg against maintaining a passing off action over a feature that also happens to be a registered design, provided the plaintiff can show that the feature has, through long and extensive use, acquired distinctiveness identifying the source of the goods.
The Court treated the questions of whether Crocs’s shape had in fact acquired such distinctiveness, and whether the defendants’ footwear was likely to deceive consumers, as disputed questions of fact that could only be resolved through evidence at trial rather than decided at the preliminary stage of admitting the plaint. The Bench also clarified that Sections 2(d) and 19(e) of the Designs Act, which allow cancellation of a design that is used as a trademark, address a separate cancellation proceeding and do not themselves bar a passing off suit.
Bata India and Liberty Shoes challenged the Division Bench’s ruling before the Supreme Court, arguing that it had misapplied Carlsberg and ignored the exclusion of trademark features from design protection under Section 2(d), and that permitting the suits would grant Crocs perpetual protection over features that ought to fall into the public domain once its design registrations expire. On 14 November 2025, a bench of Justices Sanjay Kumar and Alok Aradhe declined to interfere, holding that the Division Bench had merely restored the suits for trial rather than finally determined the merits, so there was no occasion for Supreme Court intervention at that stage. Commentary following the dismissal has noted that the Supreme Court thereby left the underlying doctrinal question whether “something more” than the registered design must be shown to sustain a passing off claim unresolved, deferring it to the trial courts and to a future appeal on the merits.
6. Comparative Analysis
The uncertainty in Indian law contrasts with more settled, if still contested, positions abroad. United States trade dress law developed through Two Pesos, Inc. v. Taco Cabana, Inc. (1992), in which the Supreme Court held that inherently distinctive trade dress can be protected under the Lanham Act without proof of secondary meaning, and Wal-Mart Stores, Inc. v. Samara Brothers, Inc. (2000), which drew a line between product packaging, which may be inherently distinctive, and product design, which can never be inherently distinctive and always requires proof of acquired secondary meaning. This design/packaging distinction gives American courts a workable, if imperfect, filter for fashion trade dress claims that Indian jurisprudence has not yet developed with comparable clarity.
The Christian Louboutin red-sole saga illustrates a parallel Indian struggle with non-traditional fashion marks. Louboutin’s attempt to enforce its red-soled shoe as a trademark produced three contradictory Delhi High Court rulings within a short span: one recognising the mark, one holding in 2018 that Section 2(m) of the Trade Marks Act, 1999 prohibits a single colour from being registered as a trademark because the Act contemplates only “combinations of colours,” and a further ruling awarding punitive damages for infringement of the same mark. This inconsistency stands in contrast to the European Court of Justice’s 2018 ruling in Christian Louboutin SAS v. Van Haren Schoenen BV, which held that a colour applied to a specific position on a product, rather than to the product’s shape as such, does not fall within the prohibition on registering shape marks, allowing Louboutin’s red sole to remain protected in the European Union. The Indian judiciary’s discomfort with single-colour and configuration marks, visible in both the Louboutin and Crocs lines of cases, suggests a systemic reluctance to extend trademark-style protection to the visual features that fashion brands most rely upon.
7. Challenges
Several structural challenges emerge from this comparative reading. The first is doctrinal incoherence between the Designs Act’s time-limited novelty logic and passing off’s open-ended goodwill logic; Indian courts have not yet articulated a stable test, comparable to the American design/packaging distinction, for deciding when a registered design may also function as trade dress. The second is evidentiary difficulty: proving that a shape or configuration has acquired distinctiveness in the eyes of Indian consumers, as the Crocs Division Bench required, demands extensive market survey and sales evidence that many fashion litigants struggle to marshal convincingly. The third is the slow pace of adjudication the Crocs suits alone have taken close to a decade to reach a triable stage which is particularly damaging for fashion goods whose commercial life cycle is often measured in seasons rather than years. The fourth is the absence of a dedicated sui generis regime for fashion designs, of the kind the European Union offers through unregistered Community design rights, leaving Indian designers to rely on ill-fitting general-purpose statutes.
8. Findings
The Crocs–Bata litigation demonstrates that Indian courts are increasingly willing, at least at the admission stage, to permit trade dress claims to coexist with expired or existing design registrations, provided the claimant can plausibly allege acquired distinctiveness. At the same time, the Supreme Court’s refusal to settle the “something more” question in November 2025 means that Indian law still lacks a binding, articulated standard for when design and trade dress protection may overlap, leaving trial courts to develop the doctrine suit by suit. The Louboutin litigation further shows that Indian courts remain hesitant to extend registrable trademark status to single colours and product configurations, even though comparable protection is now well established in the European Union and, through the design/packaging framework, in the United States. Together, the two lines of cases indicate that Indian fashion IP protection currently depends more on the tort of passing off and on litigants’ ability to prove distinctiveness at trial than on any predictable statutory entitlement.
9. Suggestions
Three reforms would help close the gap identified above. First, Parliament could amend the Designs Act, 2000 or the Trade Marks Act, 1999 to codify an explicit test modelled on the American design/packaging distinction for when a registered design may, after expiry or alongside registration, be pleaded as trade dress, removing the need for case-by-case judicial improvisation. Second, the Trade Marks Registry and courts could develop clearer, publicly available guidance on the evidentiary threshold for “acquired distinctiveness” in shape and colour marks, drawing on consumer survey methodologies already used in comparative jurisdictions, so that fashion litigants know in advance what proof will suffice. Third, India could consider introducing a time-limited unregistered design right, comparable to the European Union’s unregistered Community design, to give fast-moving fashion collections meaningful protection during the short commercial window in which registration under the existing Designs Act is often impractical to obtain before a design is copied.
10. Conclusion
The Crocs–Bata judgment is less a resolution than a reopening of a debate that has run through Indian intellectual property law for over a decade. By restoring Crocs’s suits for trial, the Delhi High Court’s Division Bench, and the Supreme Court’s subsequent refusal to intervene, have kept alive the possibility that fashion brands can layer trade dress protection atop expired or existing design rights but only if they can prove, through the ordinary rigours of trial, that their product’s shape has become genuinely distinctive to consumers. Read alongside the unsettled Louboutin colour-mark litigation, the case exposes a fashion IP framework that is still assembled from statutes never designed with fashion in mind. Until Indian law develops a coherent, codified standard for the overlap between design and trade dress protection, fashion houses operating in India will continue to face years of uncertain, expensive litigation to protect the very features shape, silhouette, and colour that make their products recognisable in the first place.
11. Bibliography
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Mohan Lal, Proprietor of Mourya Industries v
