Fashion copycats are widespread but hard to stop, experts say | Canada Voices

The first time one of Calgary designer Nina Kharey’s designs was copied, it came with an air of flattery.

Meghan, the Duchess of Sussex, wore a $1,085 sleeveless trench from Kharey’s brand Nonie out with husband Prince Harry. The appearance heaped so much attention on Nonie that when copycats sprang up, Kharey ignored them because her trenches were selling and she figured everyone would know who made the original.

The second time one of her designs – a red and pink silk wrap dress – was copied, there was no celebrity champion, so it was hard to swallow and as she soon realized, pretty much impossible to stop.

“I actually talked to a fashion lawyer, and (they said) there’s nothing you can do,” recalled Kharey, who now focuses most of her time on Folds, a medical scrubs company she started in 2021 that is also being targeted by copycats.

While Kharey has taken a grin-and-bear-it approach to imitators, others like Lululemon Athletica Inc. LULU-Q, Aritzia Inc. ATZ-T and Nike NKE-N have seemingly grown so fed up they’re resorting to legal action.

Experts and victims understand the itch to defend original designs, especially for household brands that sink millions into product innovation, but they say lawsuits won’t do much to tamp down on copycats.

“In Canada and in the United States, we have a pretty scant copyright law coverage of fashion, so a lot of copying is perfectly legal,” said Christopher Sprigman, co-author of “The Knockoff Economy: How Imitation Sparks Innovation.”

“Now, you can’t copy brand names, but you can copy, for the most part, designs and that’s how the fashion industry has worked forever in North America.”

It’s that nature that’s allowed trendy colour palettes, garment styles and cuts to trickle down from runways to mass retailers every season as brands try to cash in on what’s hot. Think of it like that scene in “The Devil Wears Prada,” where Meryl Streep’s character Miranda Priestly tells Andy Sachs, played by Anne Hathaway, that the lumpy blue sweater she fished out of a department store clearance bin was likely inspired by Oscar de la Renta’s cerulean gowns and Yves Saint Laurent’s cerulean military jackets.

The most brazen copycats go much further than using the same shade. They copy everything from a product’s design to its logo in hopes of making a quick buck off people wanting a product so indistinguishable from the original.

If someone uses your trademarked logo or name, you can often go after them and win, Sprigman said.

The trouble is many copycats work clandestinely overseas, making them hard to identify, track down and serve with a lawsuit.

Others don’t make use of another brand’s trademarks. They just mimic the product design – a facet that’s much harder to protect.

In Kharey’s case, a big box retailer made a red and pink wrap dress that looked exactly like Nonie’s. Then, competitors mimicked the sleek silhouettes, necklines, waistbands, technical fabrics and silicone-tipped drawstrings Folds uses.

“It’s super frustrating because first of all, it acknowledges that’s a great design you had … but then these big guys come and they make it a lot cheaper, but it looks the same, and they end up benefiting,” Kharey said.

Lululemon had the same experience last year, when it filed a lawsuit after it found Costco selling clothing it said resembled its own Scuba hoodies and sweatshirts, Define jackets and ABC pants.

The alleged copies were sold for a fraction of what Lululemon charges and were made by Costco’s private label Kirkland or apparel brands Danskin, Jockey and Spyder.

None had Lululemon’s logo, but the company complained they were still difficult to distinguish from authentic Lululemon products and thus, they should be paid damages the business has yet to quantify. Costco denied any infringement and said it has always acted in good faith.

Many don’t pursue cases like Lululemon’s because they’re very expensive and usually so time consuming that by the time they wrap, the fashion industry has often already moved onto the next trend, said Erin McEwen, a trademark agent at Nelligan Law in Ottawa.

But they’re not impossible to win – if you have the right tools.

McEwen said you’re more likely to be successful if you register an industrial design with the Canadian Intellectual Property Office. Registrations protect novel visual elements in two- or three-dimensional goods, like the shape of a Coca-Cola bottle or Croc shoe, for 15 years, making it harder for people to mimic your design.

In Canada, Lululemon has 184 industrial design filings on everything from shoe soles and zipper pulls to jackets and vests that have a detachable portion you can configure into a pillow.

Companies can also trademark three-dimensional shapes like the form of a Toblerone bar or their product’s packaging, if it’s novel. Those trademarks last 10 years but can be renewed, McEwen said. Industrial design registrations can’t be renewed, so when they expire they’re fair game for others to use.

But having either or both makes a case stronger because it’s like a proactive piece of ownership, McEwen said.

Lately, some companies have pursued an extra – and unusual – layer of protection. Lululemon and Aritzia trademarked the phrases “Lululemon dupe” and “Aritzia dupe.” Dupe is a slang term popularized recently on social media to describe items that have been duplicated or copied.

The trademark keeps others from marketing their products with the original’s brand name, but Sprigman said it’s basically “a lawyer trick” that is “unlikely to work,” in part because most copycats are smart enough not to market themselves with their competitor’s name.

While the trademarks would allow the companies to go after influencers who market items as dupes of their brands, he said those lawsuits wouldn’t be lucrative and could be “a public-relations nightmare.”

Thus, as hard as it is to let copycats go, Kharey thinks victims are best off taking it as a sign that they’re doing something right and heading back to the drawing board to make the next product everyone wants to own and yes, copy.

“It’s stressful like that,” she said. “But at the end of the day … if you’re making a superior product, you would hope that the customer would be able to recognize who the original brand is and feel the difference as well.”