‘I copy therefore I exist’ - Online counterfeiting and the fashion industry

The Internet is a marvellous place, full of bright ideas and full of copycats. This medium has changed our lives in significant ways: from how we communicate to how we work, and in recent years it has even reshaped our shopping habits. Unsurprisingly, an increasing number of people are opting to buy goods online. Due to the ongoing pandemic, even more so. This led to an increase in the distribution of counterfeits online, and the fashion industry is among the sectors most affected by this phenomenon.

A counterfeit can be described as ‘a copy or imitation of something that is intended to be taken as authentic and genuine in order to deceive another’. Since one of the main aims of Intellectual Property Law is to promote and foster creativity inside societies, counterfeiters are hindering the achievement of this goal by jeopardizing the strength of IP right holders. Brands are at risk since the unlawful distribution of copycats and knockoffs online can lead to consumer mistrust. At the same time, brands themselves can experience financial damages in case consumers prefer to buy the copycat instead of the original. For example, individuals that buy fashion items online and then discover that what was delivered is a copycat are likely to become upset as they have lost time, money, and potential trust in the brand.

It is not just brands that are at risk, though. The online platforms through which fake products are sold are risking their reputation as well. One can see this if we take the example of a recent lawsuit against an individual that participated in this kind of illegal activity. Specifically, Gucci and Facebook decided to take legal action against a person in California who, as they claim, was taking advantage of the ‘U.S. group’s social media platforms to sell fake Gucci products’.[1] Amazon had previously filed lawsuits in collaboration with Valentino and Ferragamo to tackle the same issue as it affected their brands. As it can be seen, fashion brands are starting to act more aggressively against illegal activities to stop the spread of such products online, as the distribution of these negatively affects their reputation.

From these developments, one ought to point out the importance of achieving strong trademark protection. This could be made possible by registering trademarks beforehand instead of waiting to act after a suspected trademark infringement has occurred online. More effective enforcement of regulations online would aid to fight counterfeiting activities that occur in cyberspace. Companies should actively safeguard their brands to be ready in case their brand becomes the target of counterfeiters.

It is widely known that the fashion industry is a very profitable one. Consumers are eager to hop on the latest trend and buy most of the items that fashion houses are promoting as the next ‘it item’. For some individuals, the so-called ‘fashionistas’, the idea that they can potentially buy an item that looks exactly like the one that they desire but costs significantly less, makes them more susceptible to buy counterfeits. Thus, it has been observed that ‘the popularity and status attached to certain designers and their trademark designs has led to the rise of ‘style piracy.’[2] Specifically, a ‘style pirate will copy a designer’s original creative work to capitalize on the popularity or desirability of the product’.[3] One of the ways this can happen is through ‘attempts to pass off counterfeit copies as the original or the creation of ‘designer-inspired; products that seek to profit by giving the impression of relatedness to the original.’[4]

Although designers are at risk, here, to the ‘potential loss of substantial revenue and exclusive control over the use of original designs’, only a small number of 'legal rights' are available to effectively secure these ‘valuable creative and economic interests from misuse by style pirates.’[5] For example, Copyright Law and Trademark Law. However, it has been suggested by some that ‘neither copyright law nor trademark law affords sufficient protection for the original designs of fashion designers.’[6]

At this point, it must be noted that in the EU the ’Design Right’ can protect fashion designs. A design can be described as ‘the appearance of the whole or a part of a product resulting from the features of the lines, contours, colours, shape, texture or its ornamentation.’[7] The design right ‘entitles the owner to prevent others making articles to the same design’.[8] The use of this right ‘includes making, offering, putting on the market, importing, exporting or using the product in which your design is incorporated or to which it is applied.’[9] Others who wish to utilize a protected design in their products must acquire authorization beforehand.[10] In the case of the UK design rights can be both registered and unregistered.

It is evident that the dissemination of counterfeits online poses a significant threat to the reputation of fashion houses and other brands in general. This damages financially such entities, resulting in the violation of the rights of the ‘creatives’ whose intellectual property is unlawfully used. The controversial nature of the Internet as a medium is proven to be true once again since it enables illegal activities to take place. The law is still lagging: it is not as effective as it should have been to stop the continuation of this phenomenon.

In conclusion, one ought to point out that a potential solution to battle this phenomenon, besides strong trademark protection, is the education of the public regarding these matters. Thus, raising awareness would aid brands since customers that are knowingly or even unknowingly opting to buy these types of products might not realize the harm they are causing with their behaviour to the creative industries and world economies at large.

Endnotes

[1] CNBC, ‘Gucci and Facebook file joint lawsuit against alleged counterfeiter’ (27 April 2021).

[2] Kevin V.Tu, ‘Counterfeit Fashion: The Interplay Between Copyright and Trademark Law In Original Fashion Designs and Designer Knockoffs’ (2010) 18(3) Texas Intellectual Property Law Journal, 419.

[3] ibid.

[4] ibid.

[5] ibid.

[6] Tu (n) 420).

[7] Michele Woods, Miyuki Monroig, ‘Fashion Design and Copyright in the US and EU’, (WIPO, Geneva 17 November 2015).

[8] Oxford Reference, ‘Overview - Design Right’.

[9] Your Europe, ‘Design Protection’ .

[10] ibid.