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How do Indie Designers Deal With Knockoffs?

Laws around fashion design protection may not be perfect, but smaller brands aren't as defenseless as one might think.
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Photo: Alain JocardAFP/Getty Images

Photo: Alain JocardAFP/Getty Images

As denim jackets adorned with DIY patches and pins began to see a rise in popularity earlier this year, it didn't take long for mass-market retailers to get in on the trend. But instead of creating their own iterations, some opted to directly knock off independent artists. In particular, a case involving Zara's multiple (alleged) knockoffs of Los Angeles-based artist Tuesday Bassen heated up in the news last week, inspiring many more artists to come forward on social media and call out Zara for knocking off their work as well.

Bassen chose to take legal action, hiring a lawyer to send Zara a cease and desist letter; after some back and forth, Zara appears to have suspended sales of the copycat items brought up by Bassen. This is good, but it wasn't easy: In Zara's first response to Bassen's cease and desist, the retailer essentially told the artist that her brand was so small, comparatively, that its shameless copying of her art didn't matter.

Bassen's case calls attention to the fact that mass retailers (and even emerging brands) don't just look to high-end runway looks for "inspiration" anymore. They're increasingly targeting smaller designers, perhaps under the presumption that less established companies can't afford to do anything about it; or if they do, it won't matter, and that most consumers won't notice its product is a knockoff. "There are companies that are absolutely predatory searching for smaller brands, especially because smaller brands have comparatively less effective trademark protection," explains Susan Scafidi, founder of the Fashion Law Institute at Fordham University.

For an independent designer, the key to breaking through the noise and finding success in the industry can lie in a single desirable (and original) item or silhouette that, for whatever reason, catches on and becomes a hit. Unfortunately, it's often those items that copycats latch onto — a frustrating and potentially damaging experience for the designers who created them.

Photo: Courtesy Lisa Marie Fernandez

Photo: Courtesy Lisa Marie Fernandez

Swimwear designer Lisa Marie Fernandez, for instance, takes pride in the innovation she brought to the category when she launched her range of neoprene bikinis — the first that existed in the market, as far as she's aware — and that she's continued to bring by using atypical, fashion-forward fabrics and silhouettes. "It's obvious we own this category," says Fernandez. "We create our own fabrics; we use ready-to-wear details; we do things that aren't done in swimwear." Or, at least, they weren't. Some companies, she claims, will model their entire brand after one of her collections or signature styles; others will simply copy a single design. She names Victoria's Secret, Australia-based Cotton On, Triangl and Solid and Striped as the most frequent and prominent offenders.

Photo: Courtesy Lisa Marie Fernandez

Photo: Courtesy Lisa Marie Fernandez

Fernandez is certainly not the only innovative brand in the swimwear space that's been copied. Kiini, known for its instantly recognizable, Instagram-friendly, colorful crochet bikinis, is currently locked in a legal battle with Victoria's Secret — one of many companies that have knocked off founder Ipek Irgit. "One of the things that bothers me most is when unaware customers are tricked into thinking that inferior copies are Kiini," she says. "I have not seen a knockoff that is done in the Kiini quality or with the success of color combo of my creations."

Sarah Law, a recent graduate of the CFDA Incubator, runs the handbag line Kara. If you don't know the brand by name, chances are you've seen its best-selling minimalist backpack with a pronounced zipper that wraps around the top — either on some cool girl wandering the Lower East Side, or at stockists like Opening Ceremony, Barneys, Nordstrom, or Net-a-Porter. Either that, or you've come across a lookalike at Gap-owned activewear retailer Athleta, one of the many companies that has directly knocked off the backpack since Law launched her line with it in 2013. 

In the modest Chinatown office to which she moved after leaving the Incubator, Law showed me a folder on her laptop that her staff continually updates with photos and screenshots to keep track of all the copies. "I started this company out of my apartment... we've worked incredibly hard to get to this point and a lot of money and effort have been self-generated, so I think the part that's hard is when you see bigger companies with so much access and so many resources [knock off your designs]," she says.

From L to R: Kara, Good to Go, Laura Maxim, Athleta, Cue Clothing Co.

From L to R: Kara, Good to Go, Laura Maxim, Athleta, Cue Clothing Co.

Rachel Comey has also designed several retail hits only to see them knocked off, the most recent instance being her high-waisted, wide-leg, cropped and frayed Legion jean. "[It came from] me being on the shorter side and my mom hemming my jeans, and then taking them down three years later, like, 'you can still wear these,'" explains Comey of the style's inspiration. "That was a humiliating experience for me as a child... then we made that piece and then it got knocked off everywhere." The jeans ended up being so popular that Comey couldn't produce them fast enough to meet demand. Copycat companies, like H&M, however, could.

The potential damage of knockoffs to these independent designers is obvious: Customers will trade down to the cheaper version, or buyers will — perhaps unknowingly — place an order with the copying brand. Scafidi recalled an instance of a designer being barred entry into a trade show because a brand that had copied her had gotten there first.

Left: Rachel Comey; Right: Zara

Left: Rachel Comey; Right: Zara

Legally, there is only so much these designers can do. Something that makes Bassen's case different from those of fashion designers is that, unlike most clothing designs, an original illustration is subject to copyright protection in the United States. Here, Scafidi explains, there are three types of legal protection available to designers, all with their own limitations: copyright, trademarks and patents. Unlike European designers, we don't have the ability to protect three-dimensional designs. With copyright, designers can often protect things like jewelry and two-dimensional prints. Anything considered "functional," however, is excluded. And, "for 100 years in the U.S., the copyright office has said fashion is functional," says Scafidi. Trademark protection involves registering symbols used repeatedly in a brand's designs, whether it's a brand name, a logo or another distinguishing indicator, like Christian Louboutin's red soles. "Smaller brands, like any brand, can register their trademark and do, but because their trademarks aren't as recognized by the public and therefore aren't as valuable, copyists often get away with copying the design but not the mark, and therefore these smaller designers have less protection.”

Lastly, patents are for an invention that has a function — whether it's a smart fabric, a special type of closure or a method of doing something that is new and specific to your brand. In some cases, "ornamental" aspects of otherwise functional designs can also be subject to patent protection. Scafidi says she sees more and more designers expressing interest in this kind of patent — particularly those with fewer resources.

For a brand that does business in Europe, it can also be worthwhile to utilize the design protection that is available there, even if the brand is based in the U.S. Fernandez registers her designs through Germany so they're protected throughout the EU, and will have a lawyer send a cease and desist letter to offending brands.

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Irgit has copyright of her designs in the U.S. as well as international trademarks. "I was advised by my attorneys that it is my duty to protect my copyright and trademark," she says of her decision to go after Victoria's Secret, declining to discuss the lawsuit further. "I also think that it is important in life to stick up for yourself and for what is right. I am not a pushover."

Photo from Kiini vs. Victoria's Secret court documents.

Photo from Kiini vs. Victoria's Secret court documents.

Though, she admits, "It is expensive, and it takes away from my valuable time. I also really dislike legal terminology. My head starts spinning when I have to have these conversations." Indeed, even if a designer does take the time to register her designs (if that's even possible), actual litigation can require more time and resources than the designer has to spare.

"I think a lot of times you think about where you can use your money or where to get the best value, and for me it's about what we can do with our office, what we can do with our team, what we can do with design and development," says Law. "I don't really have the resources or the time or even the motivation to do that to be honest," agrees Comey.

Though, as Scafidi points out, such cases often don't make it to court: "They result in settlements, so if you can write a cease and desist letter and not just say, 'hey you're copying me,' but say, 'hey you're copying me and here's the number of my copyright registration' or 'here's my patent number' or 'here's my trademark registration,' you have a lot better chance of cutting down the copying than you would otherwise." And, of course, sending a letter is less costly than litigating through a lawyer who bills hourly.

But increasingly, designers are taking matters into their own hands, perhaps by social-media shaming — i.e. posting an image of your design next to the copy and calling out the offending company — as Tuesday Bassen did, and as a few other designers have done. But some have mixed feelings about it, even those who are otherwise vigilant about copyists. "I think Instagram is a platform for more visual and pleasant conversation," says Irgit. "No one wants to open their Instagram and see angry comments. I get really disturbed when people are mean to each other on social media and put each other down." However, she admits she can get pretty heated on Twitter.

Law is often alerted to knockoffs by her passionate fans and customers on social media, many of whom will shame an offending brand in the comments of its Instagrams and tag Kara's account. For the most part, Law abstains from doing any social media shaming herself, but occasionally she and the founders of indie bag line Building Block — friends of hers — will tag each other in photos when they find copies. Law and Fernandez both separately likened this phenomenon to the Beyhive.

And while Fernandez says she has engaged in some social-media shaming in the past, she's more likely to utilize her industry clout and the network of fashion-world connections she's built (first as a stylist and editor, then as a designer) to make sure unoriginal designers don't get attention they don't deserve. "You can make their lives miserable. You can humiliate them in the press," she says. "I'm friends with all the editors so they're all very supportive of the product. They tell me [when they see knockoffs]."

"I have said to the buyers, if you sell this imposter product alongside our brand, we'll pull the brand from the store, and I don't care who it is." She continues, "I've taken screengrabs and said, 'you're selling the same suit by three different brands at three different price points.'" She once even confronted an Australian copycat designer to her face during a past Miami Swim Week in front of a buyer from Matches Fashion. She was also more than happy to speak with Australian and British press when it appeared that Aussie "It" girl Lara Bingle — a friend and fan of Fernandez's — had knocked her off in Bingle's 2014 collaboration with the brand Cotton On. (For the record, Fernandez blames Cotton On, not Bingle.) "[Cotton On] sent us a letter saying, 'if you don't publicly say that what you said is factually incorrect, we're going to sue you,' and I was like, 'fuck you.'" Ultimately, Cotton On took the product in question off its website and no one went to court. 

Law and Comey take a more passive approach to dealing with copyists. "Usually I don't make comments about it, mostly because it's a waste of time," says Law. Ultimately, she feels it's "a part of our culture and it's a part of the fashion industry that people copy, and that there are derivative versions of things out there in the world."

Comey, too, has accepted the reality of knockoffs. "I can't really dwell on pointing fingers at anybody; it's not really that useful for me," she says. "I think the frustrating thing is the homogeny of the market. Just so many of the same things from different brands at different price points." It's true: jeans "inspired" by the Legion; gingham, high-waisted bikinis; Mansur Gavriel-"inspired" bucket bags, open-toed mules; off-the-shoulder tops with extra-long sleeves, and so much more can be found in every store, at every price. So, in an ideal world, how do we stop it?

The bag copied 'round the world. Photo: Mansur Gavriel

The bag copied 'round the world. Photo: Mansur Gavriel

Instead of copying, collaborating and/or ghost designing are options. "If someone really likes our suits, it would take us five minutes to make them a collection that doesn't look like ours and make it look like theirs," offers Fernandez. Or, you know, brands could just be original.

But since that won't happen, both Comey and Fernandez have pivoted to a "see now, buy now" format, where they won't release images of new collections to the public until close to when those collections hit stores, in a direct effort to prevent knockoffs. Fernandez also stopped holding Moda Operandi trunk shows for this reason. Otherwise, each of the designers we spoke with said the threat of knockoffs doesn't impact their design process, and they all stand by their original designs, confident that they're better than the copies. "I do believe at a certain point good prevails and I think it's bad to stop doing what you're doing," says Fernandez.

Still, for every fashion brand that's built on integrity, there are many more that prioritize bottom lines and a constant rollout of new product over creativity and innovation; and thanks to the Internet and social media, there's a constant stream of visual content from which they can take "inspiration" all day long. And many designers are left unprotected by the law. Hopefully, that aspect will change.

The CFDA has been working to get the U.S. the the same level of protection as Europe. Congress has been stubborn (and, of course, one could argue there are bigger fish to fry). It's been a long fight, but Scafidi is optimistic we'll get there. Why? "Because the world has moved in the direction of harmonizing intellectual property protection and because design in particular is growing in the U.S. And we are so influential in the design realm even as our manufacturing sector has shrunk," she explains. "It's frustrating that such an enormous industry with tremendous economic impact is not taken seriously. Even as the U.S. has been a leader in protection for things like film, we just haven't stepped up to the plate for fashion."

Until we do, designers will have to continue dealing with knockoffs as they see fit for their businesses — and making sure they're educated about what they can do. "The biggest change I would like to see is designers taking law seriously and educating themselves," says Scafidi (who, granted, runs a fashion law program and stands to benefit from such comments). "It's tremendously important for designers to realize if they're willing to learn the basics of law, they can do a lot to protect themselves before they're ever in a crisis situation. Our tools are not perfect, but they exist."

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