Mass market replication of designs can serve as a compliment, even helping to market the original brands, some argue. But, when imitations flood the market, reputational damage can ensue. “A marketplace of cheap copies can impact sales as well as brand prestige,” says Rachael Barber, Deloitte legal partner, IP specialist and a key force behind Dupe Killer. Here she is referencing Burberry in the 1990s when its signature print was imitated on everything from baseball caps to baby-strollers. “If the market is flooded with cheap copies, it has the potential to turn consumers off from buying the real thing,” she adds.
What happens next is up to the brands. Some might choose to take legal action against the biggest infringers. Others might wait for a few months to see how the scale of the trend develops. The most militant companies, often with deep pockets, seek to pursue every instance of infringement identified and clear the market. The decision on whether to take enforcement action depends on factors that can tip it one way or the other — including the potential damage to the exclusivity of the brand and its resulting impact on sales; the cost of litigation; the likelihood of a successful lawsuit; and the potential damages awarded. Dupe Killer provides a recommendation for enforcement, with guidance on which cases to pursue, given the context of local legislation, the similarity of design, and the trading volume.
The fees should not put off small designers, says Barber. “For a new designer, they may have come up with something iconic that’s going really well and starting to get picked up and copied, or they may have a signature that really matters to them.” Although Deloitte declined to reveal their pricing structure, Vogue Business understands that for an independent label it can be affordable. Companies found guilty of infringement can be heavily penalised, particularly within the EU. They might be forced to pay all legal fees plus any profits made on illegal sales, as well as ordered to destroy unsold product. “Recovering compensation can be a profitable exercise,” adds Barber.
While the EU has set up decent protections for designers in Europe, pursuing infringements in the US is trickier. To protect intellectual property, brands either rely on applying for slow and costly design patents; or on the unpredictability of trade dress – a protection offered when the look and feel of a product distinguishes its source for the consumer. In Barber’s experience, European design houses only focus on mega-infringers in the US. European fashion houses are reluctant to enter the US patent making process for designs that will be redundant at the season’s end, leaving them with trade dress as the only option for litigation. To make that calculation, the incentives have to be high.