Not long ago, our friends over at Racked called attention to the serious similarity between Triangl swimwear’s colorful geometric bikinis and a new collection being offered by Victoria’s Secret in an article entitled, “Did Victoria’s Secret Copy Beloved Indie Bikini Brand Triangl?.” Racked’s article came on the heels of a not-so-small number of Instagram users calling out Victoria’s Secret for copying Triangl on a recent post by the lingerie giant. (See a few of Victoria’s Secret’s versions directly below).

Triangl, an Australia-based swimwear brand, is known for its color-blocked neoprene bikinis, which have become a must-have amongst celebrities (everyone from Beyonce to the Kardashians) and social media stars, alike. The brand itself boasts nearly 3 million Instagram followers, and has been the subject of a wide array of press since industry newcomers Craig Ellis and Erin Deering launched it in 2012. InStyle is “obsessed” with them. THE Sydney Morning Herald called Triangl the maker of “the world’s hottest bikini.” Similarly, The Independent labeled the brand’s Milly style, “the world’s most popular bikini.” 

Not surprisingly, Victoria’s Secret, which has been aiming to more closely mimic the fast fashion model pioneered by Zara, is producing a few very similar swimsuits. According to reports, the lingerie giant is working on speeding up its process, working to trim the time between when products are designed and when they hit stores. But the copies don’t stop there. Other brands churning out Triangl copies include: Target, ASOS, Forever 21, and the like, as well as higher end brands, such as PILYQ. Copies are also rampant on Alibaba, eBay and even Etsy.

According to a recent article on BoF, “Triangl is battling a flood of knockoffs, with many emerging from such marketplaces as Alibaba. The duplicates keep Ellis awake some nights. Recently, while on a trip to Saint-Tropez, in France, he spotted a small store selling nearly exact copies of Triangl designs. There was nothing he could do about it.” 

Nothing he can do about it? I’m not so sure. Yes, there is little the brand owners can do about consumers who would simply prefer to buy lower cost fakes (à la those opting to shop the Victoria’s Secret suits, which run for about half the price of the real thing), and there are plenty of those. Moreover, there is little protection afforded by copyright law. As you likely know, multiple efforts to establish copyright protection specifically for fashion designs have stalled in Congress, but, the growing market of nearly-identical copied goods threatens the authentic fashion industry. As a result, both high-end designers and emerging designers suffer. While a statute specifically protecting fashion designs does not yet exist under American law, fashion designers can find protection via trade dress protection and/or design patent protection.

So, what is trade dress? Well, it is a subset of trademark law that provides protection for the appearance of a design if it serves the same source-identifying function as a trademark. In order to quality for trade dress protection, a design must be inherently distinctive (aka have the ability – upon first use – to communicate to the consumer that the mark is identifying the source of the product as opposed to describing the product itself) or have acquired secondary meaning, which means that consumers associate the design feature with a particular producer.

For Triangl this would require that consumers associate the color-block/contrasting trim elements of its bikinis with its brand. More specifically, the trade dress here, and we’ll focus on the Milly style, would be likely to cover the geometric defined bra-top bikini with its two solid horizontal lines towards the top of each cup and vertical line detail, which is centered on the lower portion of each cup, and including their contrasting body color and trim. (The bikini top is a stronger case, in my opinion, than the bottom, as it has more defining characteristics.)

Assuming that the design of Triangl’s Milly bikini (pictured above), the brand’s most popular and most copied style, is not inherently distinctive, in order for the brand owners to claim trade dress, they must show that the design has achieved secondary meaning. An array of Circuits, including New York’s Second Circuit court, look to the following factors to gauge secondary meaning:

1.  Advertising expenditures;

2. Consumer studies linking the mark to the source;

3. Unsolicited media coverage of the products;

4. Sales success;

5. Attempts to plagiarize the mark; and

6. Length and exclusivity of the mark’s use. 

In order to keep this brief, we will look to only a few of these factors. Primarily, unsolicited media coverage. This is the articles, editorials, etc. that reference the brand and its particular trade dress. For Triangl, this takes the form of articles that make mention of its Milly style, including those in WWD, Marie Claire, The Independent, Sydney Morning Herald, InStyle, DailyMail, People, Business of Fashion, Sports Illustrated, the Mirror, StyleCaster, OK! Magazine, Just Jared, Evening Standard, Bloomberg, and the South China Morning Post. There is also editorial placement of its bikinis. Some of the brand’s unsolicited editorial coverage comes by way of Women’s Health, Self Magazine, Yahoo, and The Independent. And don’t forget coverage in connection with the brand’s celebrity fans, which include Beyonce (who wore the brand’s bikini top in her “Run the World” video), Kendall and Kylie Jenner, actresses Lucy Hale, Shay Mitchell, Ashley Benson, Vanessa Hudgens, Cara Santana, Jessica Grace Smith, and Ruby Rose; musicians Miley Cyrus, Ellie Goulding, Selena Gomez, Demi Lovato; models Joan Smalls, Bella Hadid, Jaime King, Nicole Trunfio, Erin McNaught and Chanel Iman; and British reality stars Jasmin Walia and Millie Mackintosh, among others. 

Sales success: If the numbers cited in the recent BoF article are anything to go by, the fouth factor will be easily met by Triangl; “Triangl expects to haul in $60 million in sales this year, more than twice as much as the $25 million in bikinis it sold in 2014.” Moreover, according to other sources, the brand sells upwards of 45,000 bikinis a month. In short, it has made a major impact since its debut a few years ago. 

Attempts to plagiarize the mark: This is another important factor, and for Triangl this seems like an another one that is relatively easy to meet, as evidenced by the rampant copying of its various styles, mainly the Milly trade dress. Such widespread copying and specific examples are cited by Huffington Post, Business Insider, Racked, Boston Globe, Styleite, Seventeen, Yahoo, etc. 

And trade dress protection is not the only option, as design patent protection likely also applies, at least in theory. A design patent is one that protects the way a product looks and is granted to the holder of a design that “consists of visual ornamental characteristics embodied in, or applied to, an article of manufacture.” This is not the most widely used form of protection because it just doesn’t make sense for the vast majority of designs, which are seasonal in nature and trend-based. It takes at least a year to receive patent protection and costs upwards of a few thousand dollars.

Thus, by the time a brand gets its patent application processed, the design at issue is often old news. With this in mind, the design patents we do see in the fashion are those based on garments and accessories that a brand plans to sell widely or re-introduce for another season or so. A few designs that are patented include: CÉLINE’s Case and Envelope bags, some of Missoni’s zigzag prints, elements of Alexander Wang’s Rocco bag, Balenciaga’s shopper tote, and an array of Jimmy Choo footwear. 

While the design of Triangl’s Milly bikini may otherwise be patentable, there is a problem. In the US, there is a bar on seeking design patent protection if the design has been publicly known for more than a year – this is problematic for Triangl, which has been marketing its designs for roughly three years now. As such, trade dress appears to be the brand’s best bet – legally – in terms of fighting fakes.

But a brand’s options when it comes to fighting fakes are not limited to legal action. There are other things they can do – one of which Triangl is already doing: selling exclusively through their own site, which is certainly an effort to limit confusion amongst consumers who are looking to buy the real thing and ensure that their consumers are, in fact, getting the real thing. 

So, listen up brands: Limiting the number of stockists that carry your collections and clearly listing any non-brand stores that are stocking on your website is an easy and cheap way to fight fakes. It certainly will not wipe out the individuals who want the cheaper deal, but it will provide your legitimate consumers with confidence that they are buying the real thing, which can be a concern when the market is flooded with fakes.