When we think of forensic science, we usually visualize crime scenes or a crime lab flooded with evidence. However, forensic science can also play a highly useful role in the fashion industry. Through analyzing items like handbags, hoodies, sneakers, etc. from a forensic perspective, we can determine if the items in question were stolen or counterfeited.
The phenomenon of counterfeiting is one of the most serious and widespread issues facing the fashion industry. Billions are lost each year because of counterfeit goods. Counterfeiters have learned how to perfectly copy all logos and packaging so that distinguishing between a genuine and a counterfeit product does not always rely on visual verification anymore. This is where forensic textile science proves invaluable. Forensic scientists analyze fabrics for their fiber content, dye, weave structure, and chemical characteristics to provide solid and objective proof that is needed in court proceedings, by customs officers, and by brand protection teams.
Importance of Scientific Evidence in Fashion IP and Counterfeit Lawsuits
Intellectual property disputes related to fashion revolve around a single crucial legal question, namely: will a particular consumer confuse a product with the company branding it, or can it be classified as a counterfeit? In the USA, the matter is dealt with based on trademark law, where, in cases of counterfeiting, it is often resolved by comparing the product being discussed with the original one, and in cases where it is hard to tell them apart, expert testimony is used. The standard is “identical or substantially indistinguishable,” which makes it crucial for brands and law enforcement to show how a counterfeit product differs from the actual one with evidence of the difference having been found.
This is the point where the issue turns out to be more than legal, but scientific. The logo can be photographed and evaluated qualitatively. However, determining whether a so-called “genuine leather” product is made of leather, whether the “100% silk” scarf is indeed silk or whether the thread, pigmentation and composition of the fabric used correspond to the manufacturing requirements of the brand, requires laboratory tests. Forensic textile science provides that proof.
Fibre analysis is the identification of the material from which any textile item is made.
In forensic textile work, fibre identification is the first step. The feature of textile fibers, such as cotton, wool, silk, polyester and nylon, is that they have unique physical and chemical characteristics. In order to investigate the textile fibers, forensic examiners apply microscopy in order to study their section shape, diameter and surface characteristics, as natural and synthetic fibers have different behaviour under magnification.
This type of replacement occurs not only in counterfeit and illegal activities, but it is also often seen in legal supply chains, where manufacturers sometimes exchange quality materials for other, less expensive ones, so that they can sell their product under a brand name. Because of this, brand protection experts have found ways of determining the type and variety of cotton used in a piece of clothing, which allows a manufacturer to be sure that the “Pima cotton” or “Egyptian cotton” label is in fact correct and know where exactly the swap happened in the supply chain.
Dyes and Colour Investigations: The Chemistry that Underlies Colours
When looking at colour, it seems like it can be copied easily. However, dyeing processes actually represent one of the most insightful tools for textile crime investigations. Dyes are very complicated organic compounds, and manufacturers use unique dye recipes and dyeing treatments to reach a specific colour. Two different materials might seem identical to the eye, but in reality, they can be made from totally different types of dyes.
To compare dyes taken from fibers, forensic chemists apply several techniques, the most significant of which is thin-layer chromatography, a technique designed to allow for efficient comparison of the components of individual dyes. Other important techniques include various spectroscopic methods, including ultraviolet-visible spectrometry and Fourier-transform infrared (FTIR) spectroscopy, which analyze the behaviour of the dye in terms of its interaction with light. More recently, RMS has demonstrated that Raman spectroscopy allows dyes in fabrics to be identified in a non-destructive manner, a significant advantage for an item that has to be proven to have a dye which would have allowed for its sale by some retailer. In particular, when a counterfeit garment manufactured using a dye that is similar in appearance but different in chemical composition from the one used in original production is involved, this method can be utilized to pinpoint the discrepancy.
Fabric Structure Analysis: Weave, Weight, and Construction
In addition to the fabric material and its colour, the structure of a piece of fabric also has a forensic value. Luxury fabrics are manufactured on a certain type of loom with a certain thread count and weave density and treated with specific methods that it is hard for counterfeit producers to reproduce precisely. Therefore, forensic specialists in fabric structure pay attention to details like stitch density and seam construction, edges, and the geometry of patterns, making the necessary comparison of these data with the specifications of the company being studied.
This kind of analysis is very useful as it targets gaps in the production of counterfeit goods. While the logo reproduction would not cost much, replicating a mechanical structure of a fabric would be much more complicated. Instead of just colour, any small noticeable difference like a stitch count per inch or seam finish would be presented as evidence against counterfeiting.
How Evidence is Used in Legal Matters
In instances where forensic textile analysis has been performed, such evidence is helpful in fashion-related intellectual property and counterfeiting lawsuits. It can establish proof that substantiates allegations of trademark infringement by showing that the fabric used in a disputed item does not meet the specified requirements outlined in the trademark, thereby providing more evidence than merely a comparison of logos. It can assist in cases when customs confiscate items, providing legal evidence required in order to detain or destroy items, as law enforcement agencies need scientifically reliable evidence to act rather than just an employee’s opinion. Finally, such evidence can be used to solve controversies connected with quality assurance or misrepresentation of materials, for instance, when it needs to be proved that the material used matched the actual product instead of the logo being copied.
Recent high-profile fashion lawsuits highlight how many points depend on precise technological details. Luxury brands have taken legal action against both resellers and online marketplaces with respect to counterfeit products like bags and jewellery; establishing whether the accused merchandise is genuine, changed, or fully forged is crucial in the process, as visual inspection alone may not give any assurance. Counterfeiters are starting to produce “super fakes” which look almost like the original goods,s and that forces brands to increasingly depend on laboratory-level material science to separate real goods from counterfeit ones instead of judging them by appearance only.
Case study: Ritika Private Limited v. Biba Apparels Private Limited.
The Indian courts also had to consider the question of how far the protection of intellectual property applies to textile prints, designs, and patterns, which is exactly what this article focuses on. The Delhi High Court had to adjudicate this issue in a case from 2016 where Ritika Private Limited, selling garments under the widely known brand “Ritu Kumar,” brought a suit against Biba Apparels Private Limited, another leading Indian clothing brand. Ritika accuses Biba of infringement of copyright because, as the plaintiff argues, Biba used more or less the same sketches for its own prints and in the production of its clothing.
Having looked into the case, the Delhi High Court, concerned with the only question of law – once a design is made industrially and applied to a large number of garments, does it lose copyright protection and fall under the Designs Act, 2000, which provides a shorter period of protection? The Court, keeping reliance upon Section 15(2) of the Copyright Act and previous judgments, ruled in favour of the fact that in light of the fact that Ritu Kumar had already made more than fifty reproductions of her designs via an industrial process of making garments, the copyright that was being claimed by the plaintiff has no bearing and the design should have registered under the Designs Act to be protected. The Court found that Biba was not merely copying Ritu Kumar’s original design but rather producing it through an industrial process. Hence, the judgement was passed in favour of Biba, and the case was dismissed.
Source: Ritika Private Limited vs Biba Apparels Private Limited, Delhi High Court, 23 March 2016, CS(OS) No. 182/2011 — https://indiankanoon.org/doc/20292476/
References:
- Peterson, M. & Kurouski, D. (2023). “Non-Destructive Identification of Dyes on Fabric Using Near-Infrared Raman Spectroscopy.” Molecules, 28(23), 7864. https://doi.org/10.3390/molecules28237864 (also available via PMC: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC10708237/)
- “Analysis of Dyed Textile Fibers: Connecting Small Molecule and Polymer Chemistry with Forensic Science.” (2024). Journal of Chemical Education, 101(9), 3963–3968. Open access — https://pubs.acs.org/doi/10.1021/acs.jchemed.4c00664
- “Textile in Forensic Science: Its Roles and Future.” Textile Engineering. https://textileengineering.net/textile-in-forensic-science-its-roles-and-future/
- “Fabric Analysis.” Forensic Chemistry Laboratory Manual, UNT Open Books Library. Open access https://openbooks.library.unt.edu/forensicchemlabmanual/chapter/fabric-analysis/
- Bulska, E. et al. “The Identification of Cotton Fibers Dyed with Reactive Dyes for Forensic Purposes.” Molecules, 25(22), 5435. Open access https://doi.org/10.3390/molecules25225435
- U.S. Department of Justice, Justice Manual. “1715. Trademark Counterfeiting Requirements For A ‘Counterfeit Mark.'” Open access (U.S. government) https://www.justice.gov/archives/jm/criminal-resource-manual-1715-trademark-counterfeiting-requirements-counterfeit-mark
- U.S. Patent and Trademark Office. “Methods for genotyping mature cotton fibers and textiles” (patent filing describing cotton cultivar authentication methods used against counterfeit textile goods). Open access https://image-ppubs.uspto.gov/dirsearch-public/print/downloadPdf/9290819
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