The Dupe Killer: copy tracking with AI
According to some, the reproduction of models on the mass market can serve to complement or even help to market the original brands. But, when imitations flood the market, reputational damage can ensue. “A cheap copy market can impact sales as well as brand prestige,” says Rachael Barber, Deloitte’s legal partner, intellectual property specialist and a key force behind Dupe Killer. Here she references Burberry in the 1990s, when her signature print was imitated on everything from baseball caps to strollers. “If the market is flooded with cheap copies, it can deter consumers from buying the real thing,” she adds.
To take part
What happens next depends on the brands. Some might choose to take legal action against the biggest offenders. Others might wait a few months to see how the magnitude of the trend develops. The most militant companies, often with deep pockets, seek to pursue each case of infringement identified and clear the market. The decision whether or not to take enforcement action depends on factors that can tip it one way or the other, including potential damage to brand exclusivity and the resulting impact on sales; the cost of litigation; the likelihood of a successful trial; and any damages awarded. Dupe Killer provides a recommendation for the application, with advice on which cases to pursue, given the context of local law, similarity of design and volume of trade.
Fees shouldn’t discourage smaller creators, Barber says. “For a new designer, they may have found something iconic that is going really well and starting to be picked up and copied, or they may have a signature that really matters to them.” Although Deloitte declined to disclose its pricing structure, Business in vogue understands that for an independent label, this can be affordable. Companies found guilty of infringement can be heavily penalized, particularly within the EU. They could be forced to pay all legal fees as well as profits made on illegal sales, as well as an order to destroy unsold products. “Recovering compensation can be a profitable exercise,” adds Barber.
While the EU has decent protections in place for designers in Europe, prosecuting infringements in the US is trickier. To protect intellectual property, brands either rely on slow and expensive design patent applications; or on the unpredictability of trade dress – a protection afforded when the appearance of a product distinguishes its source to the consumer. In Barber’s experience, European design houses only focus on mega-violators in the United States. European fashion houses are reluctant to enter the process of making US patents for designs that will be redundant at the end of the season, leaving them with trade dress as the only option for litigation. To do this calculation, the incentives must be high.