The Indian ethnic wear fashion industry has seen a huge revival in the last 10 years or so, with the Indian youth embracing the stylistic and cultural aspects of indigenous clothing. The advent of digital advertising and social media has played a very important role in making Indian ethnic wear a fashion must-have for a large strata of the urban Indian population.

Many famous designers, including Sabyasachi Mukherjee, have been at the forefront of this renaissance. However, the famed designer has found himself in the media spotlight of late, not quite for the right reasons, with accusations of cultural appropriation, or rather misappropriation being levelled against his new collection named Wanderlust, launched in collaboration with the Swedish brand H&M. The collection, which includes saris, purportedly infringes on the Geographical Indications (GIs) of certain artisan communities.

While these news reports and allegations have certainly stirred up a veritable hornet’s nest, and have understandably raised quite a hue and cry about cultural misappropriation and loss of income to grass-root level artisans, it is equally important to analyse and discuss the possible solutions for both communities so that they can mutually and profitably co-exist.

This piece, in addition to analysing the rights and claims involved in the accusations levied against Mukherjee and H&M, will analyse the various laws and principles regarding protection of traditional knowledge and Access and Benefit Sharing (ABS) mechanisms.

As reported by some leading Indian news publications, such as the Hindustan Times, The Indian Express and The Hindu, the controversy is regarding the Wanderlust collection which features bohemian kaftans, trousers, t-shirts, dresses and a sari. The collection purportedly was ‘inspired’ from some famous Indian crafts and artisanal designs, including but not limited to Rajasthan’s Sanganeri prints. Sanganeri is an ancient practice of block-printing which originated centuries ago in Sanganer, Rajasthan. Pertinently, ‘Sanganeri Hand Block Printing’ is also registered as a Geographical Indication vide application no. 147 as per Section 2(f) of the Geographical Indications of Goods (Registration and Protection) Act, 1999.

In view of the above context, Sabyasachi was addressed in an ‘open letter’ signed by 15 Indian crafts associations and collectives, including Crafts Council of India, Crafts Council of Karnataka, and the All India Artisans & Craftworkers Welfare Association. The prints used for the collection apparently are very similar/identical to the GI-protected Sanganeri prints. One of the questions raised in the letter was:

“Have the artisan communities that have the proprietary rights to these designs been credited or compensated in any way? In the case of some of the designs used in ‘Wanderlust’, the Sanganeri print artisans have a Geographical Indication registration.”

Reportedly, another very relevant concern raised in the letter was,

"This was an incredible opportunity to position India’s design and craftsmanship on the global map…imagine the sheer potential of this story had it only said, ‘Handmade in India’, supporting millions of jobs… in communities that need it the most. Even if half the collection had been made by artisans, it would have made such an impact at a time of economic crisis like this pandemic…"

Thus, the pain-point of the artisans appear to be mainly two-fold:

1) Infringement/misuse/misappropriation of registered GI; and

2) Lack of attribution, credit, compensation and overall exposure of local artisans/craftsmen in the international community (the promotional material purportedly portrays a connection with local Indian artisans and crafts, when there is no such connection, and the goods in question are digital prints, rather than handmade).

The said ‘open letter’ is publicly available on the Instagram profile of Dastkar, Delhi, which is a ‘Society for crafts & craftspeople. Aims to improve the economic status of Indian artisans and seeks to rejuvenate India's traditional arts & crafts.’ Snapshots of the said letter are provided below for ready reference:

From the above letter, which prima facie appears to be in the nature of a plea for public awareness rather than a demand letter or a precursor to legal proceedings, the issues at hand are quite evident. It is pertinent to note that Sabyasachi had responded to the above letter via its official Instagram handle in the form of a story, stating that his collaboration with H&M is 'different' from his usual repertoire, and that such exposure will lead to consumers coveting real artisanal work at higher price points, as opposed to said artisans having to stoop to lower price points to sell their goods. It has further been stated that the collaboration was a part of a different mission to put Indian design on the international map, and that 'Designed In India' is equally important as 'Made In India'.

The question of cultural misappropriation and violation of registered GIs is not a new one, especially in the fashion industry. However, this recent furore which features rather considerable media and public involvement, has the opportunity to address the elephant in the room – how to co-exist in a mutually beneficial manner, under the current legal framework and/or what steps can be taken to ensure parity and fair ABS mechanisms?

Legal framework

In this section below, we shall discuss the legislation, legal framework and principles of note which are important to explore possible sui generis solutions to this issue.

A. Geographical Indications

Geographical Indications (GI) in India are governed by the Geographical Indications of Goods (Registration and Protection) Act, 1999 and the The Geographical Indications of Goods (Registration and Protection) Rules, 2002. Section 22 of the GI Act, 1999 defines infringement of GIs as:

22. Infringement or registered geographical indications.—(1) A registered geographical indication is infringed by a person who, not being an authorised user thereof,—

(a) uses such geographical indication by any means in the designations or presentation of goods that indicates or suggests that such goods originate in a geographical area other than the true place of origin of such goods in a manner which misleads the persons as to the geographical origin of such goods; or

(b) uses any geographical indication in such manner which constitutes an act of unfair competition including passing off in respect of registered geographical indication.

In the present issue, it has been noted by Hindustan Times that regarding the Wanderlust collection in question, H&M on its website had stated that "a key highlight of this collection is Indian textile and print traditions brought to life by the Sabyasachi Art Foundation, meticulously crafted embroidery and multicultural silhouettes." In view of the above and likely some other promotional material, Dastkar in its letter has noted,

"Many of the publicity statements speak of this collection as linked to Indian design and craft while carefully omitting the fact that it has not been manufactured by any artisan. Is this not misleading the consumer for profit? What exactly is the link of this collection to Indian craft?"

Dastkar had further noted,

"Have the artisan communities that have the proprietary rights to these designs been credited or compensated in any way? In the case of some of the designs used in 'Wanderlust', the Sanganeri print artisans have a Geographical Indication registration (GI), which means they are legally recognised as the proprietors of this technique and design vocabulary."

However, a question that can be raised from the side of Sabyasachi and H&M is whether it is infringement of registered GI if they are not outrightly claiming to originate from Sanganer or are made via Sanganeri Hand Block Printing? The media coverage seems to portray that it is the very designs being used by Sabyasachi and H&M that are in question, and per se they are not erroneously using the GI tag. That said, the artisans' side may claim that a case of infringement may be made out via the mere implication or suggestion of a connection with the GI, and that principles of passing off and unfair trade/colourable imitations may apply (see Scotch Whisky Association v. Pravara Sahakar Shakar Karkhana Ltd).

In this context, one can wonder whether bad press could have been avoided by searching on India’s GI database and finding out about the GI registered under the name Sanganeri Hand Block Printing, and then seeking out the rights holders and seeking cooperation and/or attribution/credits. Due diligence is an aspect which has to be taken very seriously by the fashion industry. It may be pertinent to note that documents pertaining to the GI registration of Sanganeri Hand Block Printing are freely available on the government’s portal here. A relevant snapshot of the same is attached below:

B. Traditional Knowledge Digital Library (TKDL)

A solution (or rather, a part of a greater solution) that merits analysis is the TKDL and the possibility of relying on the same to avoid situations like the present one. The TKDL is a pioneering initiative of various stakeholders in India, primarily from the government's side, to safeguard and more importantly, provide easy access to valuable 'Traditional Knowledge'. Traditional Knowledge is a subjective term and is one which can be construed in a wide enough manner to include handicrafts and block printing.

While the primary purpose of the TKDL is to protect and safeguard valuable Traditional Knowledge, and avoid circumstances such as time, effort and money spent on revocation of a turmeric-related patent before the USPTO, the TKDL can be made even more invaluable by incorporating a wider variety of traditional expressions such as ones used at grass-root levels via weaving/stitching, etc., and making a searchable database (whether via public access or via requests made through the Indian IPO), wherein one can conduct detailed due diligence/searches to ascertain the right holders (above and beyond the scope of GIs) and accordingly coordinate to ensure Access and Benefit Sharing. Thus, fashion designers and other stakeholders can initiate the first step for ABS, i.e. identifying access.

C. Access and Benefit Sharing Mechanisms

The Convention on Biological Diversity (CBD) is an international treaty which was first adopted in Rio de Janeiro in June 1992. India was quick to embrace this pioneering international treaty, and became party to the Convention in 1994. The CBD has three (3) main objectives:

1) Conservation of biological diversity;

2) Sustainable use of the diversity; and

3) Ensuring fair and equitable sharing of benefits of such use.

In the context of the present issue regarding Sabyasachi/H&M, the most relevant aim is ‘ensuring fair and equitable sharing of benefits of such use’.

In order to effectuate the said Convention in the Indian context, the Government of India passed the Biological Diversity Act, 2002 (BD Act).While the focus of this legislature is biological diversity and promoting ABS from a biodiversity perspective, the principle enshrined therein is one which has to be holistically considered as a solution to the present conundrum.

The problem herein cannot be looked from the simplistic lens of right and wrong. While the allegations against Sabyasachi and H&M are one side of the argument, one important consideration that can be inserted here and has also been noted by Dastkar in its open letter is that conversely, fashion titans such as Sabyasachi and H&M have the power to popularize local artisans (with or without GIs) on a truly global scale. It cannot be denied that a mention of a local artisanal or craft-group in social media posts of behemoths like Sabyasachi or H&M have the potential to elevate entire communities. That said, any such promotion, mention or credit should lead to equitable benefit sharing.

Proposed solution to avoid sticky situations

Thus, the government can envisage putting in place a legal framework akin to that of the BD Act, specifically on the lines of Section 21 (determination of equitable benefit sharing by National Biodiversity Authority) of the Act.

As can be seen from the present case between Sabyasachi /H&M and local Indian craftsmen/artisans, there has to be an ecosystem wherein both parties can mutually benefit from the other, and avoid one-sided exploitation. For example, on one hand, designers may have an acute need to utilize designs of Indian craftsmen for their ethnic-wear collections. On the other hand, such local craftsmen/artisans may need the widespread reach and popularity of famous designers/fashion brands to elevate their local communities and businesses. This analogy is not restricted to the fashion industry, and can encompass a wide gamut of goods and services.

While the TKDL or a new repository akin to the TKDL can take care of the access aspect of ABS in the present context, a legal framework akin to the BD Act can correspondingly be responsible for ensuring fair and equitable sharing of benefits of use of such traditional knowledge, either with the community identified, or with a general purpose fund from which benefits may be proportionately disbursed to the communities. In fact, a combination of certain words/terms used in Section 21 of the BD Act itself, coupled with other relevant ones such as compensation, can be used as a basis on which a skeleton framework can be proposed:

· Grant of joint ownership of intellectual property rights;

· Transfer of technology;

· Computation of fair and equitable monetary compensation/ royalties;

· Regulations regarding attribution; etc.

Further, such expanded use of the repository or that of a new/different repository, may also contain names which prima facie may not be appropriate to be trademarked, unless the same have been filed by the appropriate communities/persons/societies, as usage thereof by unrelated businesses would be against the rights of the said communities/ people. For instance, a search on the Indian Trade Mark Registry’s website would reveal that some people have in fact succeeded in trademarking names such as NAVAJO (registration no. 2090535) and SIOUX (registration no. 2064265), which while not of Indian origin, are still names of tribes/communities, and usage thereof as trademarks by unrelated entities may be considered to be inappropriate. This would also make it easier for third parties such as Sabyasachi and H&M to conduct more thorough due diligence vis-à-vis possible IP violations and cultural misappropriations.

Interestingly, even the term ‘Sanganer’ has been the subject matter of trade mark applications in class 25 with respect to clothing related goods, some of which are abandoned. A relevant excerpt from the Registry’s website is copied below:

In addition to the above, another possible approach may be to build upon the much debated The Scheduled Tribes And Other Traditional Forest Dwellers (Recognition Of Forest Rights) Act, 2006’ the intent of which was to safeguard the rights of forest dwellers and their communities. Pertinently, this Act also includes provisions for right of access to biodiversity and community, and right to intellectual property and traditional knowledge related to biodiversity and cultural diversity, under Section 3(1)(k) of the Act. Hypothetically, this should provide ABS for forest-dwelling communities, who have valuable Traditional Cultural Expression, or have arts/goods/services specific to their community. However, while this very important legislation does provide a good base to build upon, unfortunately, the ABS and Intellectual Property aspects of the same have thus far not been adequately explored. However, that said, there have been developments from the government’s side since 2018, specifically regarding the Scheme for Safeguarding the Intangible Cultural Heritage and Diverse Cultural Traditions of India, which suggest that there may be positive developments in this respect in the near future.

Thus, this present issue also serves as a wake-up call to many stakeholders of various industries, that there may be a need for a legal framework which ensures ABS of a wider variety of traditional expressions and knowledge, other than the ones which are covered under the BD Act. There needs to be a comprehensive and holistic system regarding the subject matter, whether as a new sui generis system or as an extension of an existing legislation or system, to provide 360 degree protection to such cultural heritage of India.

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