California Apparel News

Big-name designers aren’t the only ones who see their work knocked off. Up-and-coming brands and young designers are learning the hard way that their work is just as susceptible to knockoffs—and more difficult to defend.

Conventional wisdom says that knockoffs work their way from the top down, through the strata from high-end fashion to mass-market fare. But many young designers who work somewhere in the middle of the fashion totem pole are finding their designs appropriated to various degrees by bigger companies, as well as by their own accounts and competitors, much to their chagrin.

“Knockoffs are the name of the game. It happens to everyone,” said Ilse Metchek, executive director of the California Fashion Association. Young designers, she said, have to get used to it. “The legality is very clear—you cannot copyright a garment.”

That’s a bitter pill to swallow for a company whose already slim market share is being eaten away by what it views as imposters.

“There’s a big difference between taking an influence and taking someone else’s garment, measuring it, cutting it and calling it your own,” said Rachel Pally, designer of the eponymous line of contemporary knitwear. “There has to be a line. Maybe the big guys have a lot of toes to be stepped on, but I don’t.”

The options are slim for victims of knockoffs, even for those with deep pockets. Garment design is nearly impossible to protect.

“There are exceptions, such as for copyrightable prints or graphics, or a pattern or embellishment that is so persuasive as a source identifier as to rise to the level of trademark protection,” said Greg Weisman, a partner at the Century City, Calif.–based law firm Silver & Freedman. Graphics and prints may be registered with the Copyright Office of the Library of Congress.

“From a legal standpoint, almost nothing is protectable,” he said. “And once you get into a litigation context, those with the money create the leverage.”

Protection for young designers and their work must be self-made. From limiting who sees the line to asking buyers to sign nondisclosure contracts, fledgling brands are devising their own safety nets to minimize the chances of getting knocked off.

A rite of passage

According to Pally, getting knocked off is a rite of passage. “It was kind of awesome seeing my stuff in Target,” she said. Not so awesome is when a direct competitor makes look-alike versions of her jersey designs and sells them at similar price points.

A local brand, Pally said, has done just that with several of her designs. “One top was identical, down to the measurement between stitches. A big company making kids’ versions of my cropped pants is one thing; this takes money out of my pocket,” she said.

Some designers have had the experience of being copied by their own retail accounts. William Anzevino, designer of Los Angeles–based contemporary brand Anzevino & Florence, has seen one of his key retailers come to market with knockoffs of his brand.

The retail chain started as a promising partner. “They sold 1,000 units and placed a reorder for 5,000 pieces,” Anzevino said. “Then the buyer asked to see more designs, and six weeks later, [copies of] the pieces were in the store and we never heard back from them.”

The designer fears that taking legal action—or naming the retailer in the press—would alienate the company and hurt his business in the long run. “They’re a big account for us, so I’m stuck in a Catch-22,” Anzevino said.

Costa Mesa, Calif.–based contemporary brand Trovata has received its share of attention, mostly good, from the industry and shoppers—which makes it a prime target for copycats. “We’ve had some problems with larger [manufacturers] that have been shameless,” said Jeff Halmos, one of the brand’s three designers. In one instance, a pair of pants was mimicked, down to the buttons, by a Los Angeles–based juniors brand. “Sometimes the copying is subtle; other times it’s a literal translation,” he said.

Sitting ducks

Inexperience makes young brands easy targets for copycats. The best protection for young designers is managing their vulnerabilities and minimizing their risk.

Trade shows represent a potential bounty for brands—and a wide open door for fakers. “It’s like a candy store for knockoff artists. Everything is out in the open,” said Efy Tal, owner of the online shop chocosho.com, which specializes in independent designers.

And that can put new companies in a difficult position.

“As a young brand, we need all the exposure we can get. We don’t really have the luxury of being extremely selective as to who sees our product,” Anzevino said. “It’s part of the game. I know when I show the line there’s the possibility someone will take my ideas.”

Line sheets also pose a problem for designers. Those with sketches or pictures may make it easier for buyers to remember what they saw, but they also make excellent crib sheets for imitators.

“Line sheets should be item numbers with notations and no sketches,” Metchek said.

Allowing buyers to take photographs of garments is another big mistake. “Unless there is an order in your hand, photos should never be allowed,” she added.

The Internet allows brands to potentially reach millions of eyes, but as with line sheets, it can breed knockoffs. Trovata, which shows during New York Fashion Week, wrestled with the idea of having photos of its runway show posted online. Ultimately, the value of the exposure overtook the risk.

Aside from minimizing exposure to copycats, a young designer’s best protection is to outrun the pack.

“Designers have to constantly reinvent themselves,” said Alex “2Tone” Erdmann, designer of the new Compton, Calif.–based men’s line True Love & False Idols. “It’s harder for people to bite the style when it’s always changing,” he said.

Metchek agreed. “They have to be prolific. By the time designers are getting knocked off, they should be working on the next season.”

Fighting back

Not everyone is content to roll with the punches.

In April, Los Angeles–based contemporary brand Libertine filed a federal lawsuit against Allan B. Schwartz’s ABS brand for copyright infringement, trade dress infringement and unfair competition.

“We’re a graphics-driven line. Usually when we get knocked off, someone reinterprets our designs,” said Johnson Hartig, Libertine’s designer. However, according to David Erikson, Libertine’s lawyer, ABS’ version was a slavish copy of everything from the line’s font, graphics and packaging to its label.

Hartig, who registers all of Libertine’s graphics and maintains tight distribution of his clothes, said he wasn’t so much worried that shoppers would opt for ABS’ product over his, but rather that the deluge of knockoffs would weaken his brand’s prestige.

“It’s taking away our business if it is everywhere and our customer’s eye is tired of seeing it,” Hartig said. “They’re not going to want to spend $3,000 on a blazer if they see a $20 knockoff of our T-shirt.”

If an agreement isn’t reached, Libertine and ABS will go to court in October.

The Council of Fashion Designers of America hopes to push through copyright legislation that would make it easier for designers to protect their intellectual property.

“We’re not talking about trends but actual design, so a unique look can be protected and copyrighted,” said Steven Kolb, the CFDA’s executive director.

Developed with the Copyright Office and using input from its stable of designers, the CFDA’s proposed legislation would allow designers to register their work and protect it for three years. While the timeline is uncertain, the CFDA is taking a proactive approach to the issue.

“A number of CFDA designers have gone to Washington to talk to congressmen and senators to educate them about fashion and the protection we want,” Kolb said. A vote on the issue isn’t scheduled yet, but if it passes, he said, young designers would have affordable means to protect themselves.