Protecting the creative endeavors of fashion designers is a challenge that pulls brands in countless directions today. New platforms, trending apps, new tech solutions and improvements in manufacturing: there’s a lot to keep up with.
However, the end goal of fashion brands hasn’t changed: it is still to create beautiful pieces that amaze and inspire whoever encounters them.
And that very inspiration is what must be preserved at all costs. It is the very livelihood of fashion brands. When inspiration turns into a vulgar copy, immediate action must be taken. Here you will find the complete guide to protecting fashion brands’ Intellectual Property.
- How law can protect fashion brands from counterfeiting
- Counterfeiters are also copying brands' online strategies to attract customers
- Consumers are tricked into choosing fakes
Intellectual Property law in the fashion industry
The daring art of fashion needs a strong legal backbone. Without it, counterfeiters can copy and profit off the back of a brand’s creations without any repercussions. Intellectual property is what a brand builds the foundations of its reputation on. There are many legal aspects to consider within the fashion industry that still lead to confusion to those who aren’t in the practice of law. Here’s a breakdown of the legal options available to fashion brands.
Copyright for fashion brands
The good news for this type of legal protection is that it’s granted upon creation in most parts of the world (including the EU and USA). Although it is recommended by law professionals to register it to ensure a smooth court case in the event of litigation. This law is intended to both protect the author or owner of the rights, as well as to ensure that the creation can inspire others to learn and create further.
In terms of fashion items, it is the hardest type of IP protection to make effective, as it has to be “fixed in a tangible medium of expression,” (Goldstein on Copyright, 3rd Ed.) and must be able to be separated from the “useful article” such as an item of clothing. It is related to easily identifiable works that are found in a tangible form, such as a fully printed book, or a photograph.
The doctrine of separability
When the artwork is incorporated in an article that is “useful” and therefore not copyrightable, there is one way of knowing if it can be copyrightable; If the artwork can be separated entirely from the “useful” article and used onto a different article, then it is copyrightable. This idea has been strengthened since 2017, when Star Athletica went to court with Varsity Brands about copied designs.
Infringements in copyright law
If the rights holder hasn’t given permission to use the copyrighted work and it doesn’t fit under the exceptions that are stipulated in copyright law, then they may file an infringement lawsuit. Here’s a list of the exceptions.
To find out more about copyright law, click here.
Trademarks protect consumers by giving them clear visual signs that the product they are buying is familiar and within a quality that has been regulated and therefore safe. It’s how consumers identify a brand, such as a logo. Many other things can be trademarked, such as the name itself of a brand, a specific color. These details may give a product a secondary meaning and distinguishing itself further from its competitors, such as the use of a red sole on Louboutin shoes.
Trademarks are essentially how the public differentiates the products of one brand from another brand. Brands dealing with counterfeit copies of their product can enforce trademark infringement to these, once they have the proof.
Trademarks offer protection only in the countries in which they are registered or used. It is important to register your trademark in all countries in which your product is available, as it makes it easier for counterfeiters to get away with copying your product. The Madrid System allows you to register your Trademark within 122 countries, which may be a cost-effective solution for brands that need to trademark within the countries included.
Here are the different types of trademarks that can be registered, from the strongest to weakest trademark type:
1. Fanciful Marks or Coined Marks
These are words that have the sole purpose of being used as a trademark. It doesn’t have to have a connection to the good itself, nor may it have a meaning in itself. The clothing brand IKKS uses a fanciful mark.
2. Arbitrary Marks
These are words that have meaning outside of the context it is used for the name of a brand, but that has no relation to the product the brand is selling. The brand Vans is an arbitrary mark.
3. Suggestive Marks
This suggests a quality or attribute that the product of a brand wishes to portray with their name. Wonderbra uses a suggestive mark.
4. Descriptive Marks
These are words that describe the goods that the mark is being used, such as American Apparel.
5. Generic Terms
These are terms that cannot be used for a trademark, such as the word email. “Genericide” is the term used when a trademark becomes so widely used that it becomes the generic noun used for a product-type.
This refers to specific applications of trademarks. It may be used to defend the visual appearance of a product or packaging. It should be an “inherently distinctive” product design, and not merely an ornamentation. It must be unique or unusual in a particular field and make a commercial impression that is distinct from the accompanying words. An example of Trade Dress is the Coca-Cola bottle.
It is important to mention that trademarks are valuable to a brand, if they are monitoring that it is not being infringed. If not, counterfeiters can easily get away with it. There’s nothing to stop counterfeiters from infringing your trademark unless you’re monitoring it. To find out more on how to register a Trademark in the USA, click here to read our guide.
WIPO states that it “is a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem.” -making it especially relevant to the fashion industry, given that it is the only way to register a specific design created. It may not be the most common of the three types of IP law used to date, but it has become increasingly more common for luxury brands, to protect their brand staples. It is the form of IP law that can provide the most protection for a whole garment or accessory, as Copyright and Trademark law can’t protect “useful articles”.
They protect the patented item for 14 to 15 years after the design has been filed and there are three different types of patents that can be registered, here are the two related to fashion brands:
1. Utility Patents
An invention or discovery that has a new and useful process, machine, article of manufacture or composition of matter, as well as an improvement on an already existing utility patent.
2. Design Patents
This is the most relevant to the fashion industry, as it is for a new, original and ornamental design for an article of manufacture.
It may be an expensive option for an original design that is only intended to last one season, but design patents have become increasingly popular among luxury brands regarding staple design pieces.
Counterfeiters copying successful strategies - as well as designs
Unfortunately, being on the right side of the law just isn’t enough to avoid counterfeiters from copying brands. Along with the constant rise in popularity of online retail, the rise of online counterfeits grows with it. And while choosing ethical, environmentally-friendly options is becoming more mainstream, we can’t assume that this is enough to direct consumers into steering clear of fakes just yet.
Social media: Counterfeiting’s powerful ally
Ecommerce has found an invincible ally with social media, thanks to over 2.5 billion social media users today. Along with brands, counterfeiters have also profited from this online community; 65% of respondents in our market research concerning counterfeit fashion said they would consider buying designer clothing through a social media post.
The techniques used by counterfeiters are deceivingly similar to brands. Tactics such as using hashtags to draw in customers, private groups to advertise anonymously or simply having a page name almost identical to the brand’s own trademark.
Not to mention the “recyclability” of counterfeiters on these platforms. If brands do manage to eliminate infringing profiles, it’s just a drop in the ocean for counterfeiters. Social media is flooded by counterfeit crime, and it’s no problem for them to quickly create new accounts and start promoting their fakes again.
The typical online route taken by counterfeiters is to create social media accounts, where they create posts with pictures from the brand’s own website and a link leading users to their seller page or a phone number to contact through an instant messaging app.
From then on, the sale is easy: they build trust by answering questions about their products and share trusted online payment methods to proceed to a sale, such as well-hidden listings in online marketplaces. Once they have found the potential buyers on social media, they nurture them through encrypted instant messaging groups with new arrivals and keep them in the buying loop.
The rise of the “reps” communities
Reddit has quickly become the new search bar for those looking for any kind of advice or niche communities of like-minded people. And counterfeit fashion is of no exception. The major subreddits regarding fashion replicas amount to over 700k users. These provide the user with all they need to know to get started in either buying or selling counterfeits, including tips to avoid getting caught, black and white lists for well-known sellers, and reviews of replica sellers for other users to read. It is a growing trend among young consumers especially, and one that is particularly hard to stop, since they themselves are not selling fakes.
Consumers are getting duped by counterfeiters’ many online tricks
The trend doesn’t stop at social media. Counterfeiters have mastered the art of trickery on every possible online channel. It's a multi-channel strategy. Starting off with the very basics of online marketing: being at the top of searches for original product queries.
Finding shortcuts to get on the top of a search result is unfortunately not so difficult, with blackhat SEO methods such as keyword stuffing (filling a page with keywords to rank higher). While regular brands would suffer from these black-hat techniques in the long-run, counterfeiters are only interested in short-term profits.
Cybersquatting is another popular technique. Counterfeiters are blatantly using a brands’ name in their domain name, with all the visual content they can copy to make it look like a professional website.
And if counterfeiters steer clear from creating their own website, there are plenty of opportunities for them on marketplaces, too. The images used by counterfeit sellers are the same as the real brands’ - as are the descriptions, titles, everything. The only way for consumers to realize is usually by looking at the seller page and checking if they are authorized sellers of the brand. But when everything else looks professional, there are no second thoughts.
Especially when looking at reviews. When we asked survey respondents how they judged a product to be authentic, 63% said it was by the reviews. Unfortunately for consumers, online reviews are also manipulated by counterfeiters. Thanks to their multiple groups on social media and instant messaging apps, offering discounts and free products if they leave a positive review. Star ratings are manipulated too. And by getting five-star reviews, they rank higher in marketplace rankings and conveniently find themselves alongside the original brands’ product.
Consumers are misled and sometimes convinced into choosing fakes
With so many techniques put in place, most consumers stumble upon counterfeits by mistake. However, with the ease of purchase and the affordability factor, fakes have also found a loyal customer base. Counterfeiters have gained more selling ground than ever before, and a driving factor is the people specifically looking for fakes.
Fast fashion has given rise to consumers buying and disposing of fashion items at a much quicker rate. Although high-end luxury brands don’t directly compete with this market, the counterfeit fashion market does. Fakes generate the same results for consumers of fast fashion: it’s affordable and it looks good enough to fool their peers into thinking they can afford the latest designer item.
The rising consumer confidence in choosing fakes is largely due to these items becoming superfakes. The reality is that many genuine fashion brands outsource the manufacture of their clothes to China, without carefully monitoring the factories they’re working with. This sometimes leads to factory owners striking deals with counterfeiters to manufacture fakes on what is known as the “third shift”; Workers do extra hours in order to produce fakes with the same manufacturing quality as the authentic products.
And for those that realize they’ve mistakenly bought the fake version, it’s simply too cheap for many to not repeat. Whether consumers are buying them by mistake or intentionally, it’s increasingly popular. Out of the respondents we surveyed, 34% had bought a fake designer clothing item before. And among younger generations, this is even higher: it amounts to almost a quarter of the 18-29 year old demographic had bought a fake fashion item.
The first step to keeping a fashion brand clear of counterfeits is making sure the legal aspects are covered. Without registered IP such as trademarks, copyright, and patents, no real action against counterfeiters can be taken. However, these mainly help in the final steps of ridding a brand of counterfeits.
The creations of a fashion brand are what makes their success. Competing with counterfeits not only is discouraging, but it also undercuts a brand’s profits. In extreme cases for newer brands, it can lead to the brand failing. The fact is that brands can become associated with their fakes by unsuspecting consumers.
Brands suffering from counterfeiting are devalued not only because knockoffs are of lesser quality than their authentic item, but also because they are linked to immoral values.
Counterfeiters have no care for fair trade, nor the environment. Deterring the growing acceptance of fakes can be done by generating a conversation with consumers about the many dark aspects of the counterfeit industry such as its link to terrorist movements and human trafficking.
When it comes to protecting a fashion brand’s IP online, technology is a brand’s best ally. Artificial intelligence has successfully been developed to aid brands in detecting fakes, reducing the time that brands must take in trying to do this manually. There are quite simply too many counterfeiters working on multiple online channels to confidently remove them without the help software doing it automatically and systematically.