Social media websites are making it possible for knockoffs and illegal copies to be on display like never before, but they also provide a means for designers to fight back when they think they have been copied. And for smaller companies, ones that tend to lack the resources for legal recourse, the social media route, which is more accessible — and far cheaper — than litigation, is proving to be increasingly popular.
Last month, designer Phillip Lim posted side-by-side pictures of his original designs and images of products from retailer Topshop, which he alleged were copies. “This happens all the time,” he wrote on the post. “And the sad thing is there is no law that protects intellectual property in [the] fashion industry—but that doesn’t mean I can’t call it out.” He followed up that post with a similar one comparing a current line of Gucci tote bags to Lim’s Fall/Winter 2014 line.
Lim is not alone. M2Malletier, the Spanish accessories brand, took a similar approach in March when it displayed images of a CH by Carolina Herrera line of bags it claimed copied some of its distinctive features. “We are deeply shocked that @houseofherrera takes such an unfair advantage of our brand’s signature handle,” according to the post. It has since threatened litigation.
The experience of one small designer encapsulates the current trend. Aurora James, the founder of Brother Vellies, a luxury footwear line launched in 2013, was tipped off to a possible knockoff by social media users. Instead of directly contacting Steve Madden about the issue, James took to social media to propose that if the company wanted similar styles, it could move production to her workshop in Ethiopia.
“It’s not even about the money necessarily,” James said recently. “The revolution is not going to happen in the court system, it’s going to happen on the consumer level.”
What neither James nor any of the articles surrounding this topic mention here is that if a brand wants anything more than for the copycat to remove the allegedly infringing products from its site (and potentially from its store floors, which is much more difficult to come by) - such as monetary damages, including profits that the brand lost as a result of the copycat brand's sales of lookalike products - he/she will almost certainly have to go to court for that.
Jesse M. Brody is a partner at Manatt, Phelps & Phillips, where his practice focuses on advertising, marketing and media. (Additions/edits courtesy of TFL).