Knockoffs in fast fashion industry: A surge in counterfeits?

Contributor: Sneha Dutta

Knockoffs and Counterfeits: A thin line difference

In today’s world, the shelf life of a fashion trend has become incredibly short. The consumers wish to stay updated with the changing styles and avail them at affordable prices. This has led to the growth of fast fashion industry for the rapid production of apparels inspired by latest trends termed as knockoffs at considerably low costs in comparison to the original. Since knockoffs are manufactured by drawing inspiration from brands, some features of the original are copied. The production of knockoffs in a way works in favour of the luxury brands by helping them recognize the designs that are liked by the public and are high on demand. It also helps in faster movement of fashion trends. Despite being copy of the original, knockoffs are not intended to cause harm to the reputation of the original designer. They do not claim to be sold under the pretext of being the original apparel but are versions inspired by the big brands. They do not contain the trademark or logo of the original.

On the other hand, counterfeits are look-alikes consisting of the trademark of the original on them. They are produced and floated in the market to pass off as being an authentic Haute Couture. They cause damage to the reputation of brands as they are low in quality. They are aimed at making profits by impersonating the reputed brand.

Though the distinctions in between knockoffs and counterfeits are blurry, yet they are identifiable by those who are aware of their differences and pay attention to minute details. This is heavily unlikely for the customers of fast fashion market and comes as a challenge for them. Sometimes, it is the trademarked feature of the brand like the coloured stripes of GUCCI or red sole of Christian Louboutin SAS that is contained on the apparel instead of the brand logo or font. As a result, it becomes trickier for the average consumers to identify as to whether it is a counterfeit or a knockoff as this demands an in-depth knowledge of the brand. This provides a space for the trade of counterfeit fashion apparels in the fast fashion industry though knockoffs being an innate feature of this industry are not aimed at passing off as the original.

The protection of the fashion industry under IPR is not as robust as that in case of music and literature. This paves a way for both knockoffs as well as counterfeits to thrive in the fast fashion market leaving brands with scarce legal remedies. While knockoffs and counterfeits are different concepts and not synonymous, yet people with the ill intent to claim the counterfeits as genuine, misuse the space for production of knockoffs in fast fashion industry and the difficulty of average consumers to differentiate between the two to manufacture and trade on counterfeits in the fast fashion market and online marketplaces.

IP protections to fashion industry

The law of trademarks protect the brand name or logo that distinguishes it from other brands but has its own limitations. For trademark protection, the mark or the feature must be distinctive and not generic. In the case of Forever 21 v. Gucci, Forever 21, a fast fashion brand succeeded in an action against GUCCI for cancellation of its blue-red-blue and green-red-green stripes which was contended to be too common to have been trademarked. This shows that trademark only safeguards the creator to an extent.

The designs Act, 2000 protects designs that are original and unique and hence can provide some sort of protection to the reputed brands provided they are being produced in an industrial process. The copyright Act, 1957 also safeguards the designs from being copied by categorizing them under the criteria of ‘artistic works.’ Section 13 of the Copyright Act, 1957 gives exclusive right to the copyright owner to reproduce or distribute the copyrighted work in public. Moreover, as per section 15(2), if a design registrable is not registered under the Designs Act, 2000 but is copyrighted, then, the copyright subsists till the article to which the copyright is applied is reproduced for more than 50 times by the owner or his licensee. This indicates that the copyright on the design is lost once this threshold is exceeded. Knockoffs produced in the fast fashion industry do not stop at 50 reproductions thereby limiting the safeguard extended by the law.

How does fast fashion industry contribute to counterfeiting?

Both knockoffs and counterfeits copy the features of the original design of the fashion clothing and accessories differing only in the degree. An average consumer of the fast fashion industry is either unaware of the high-end brands or is not well-versed with the intricate specifications of their quality and designs. It is almost impossible for him to notice the minute details that differentiate them thereby leading to failure in recognizing the slight changes in the location where the logo is placed or modification in designs of the knockoffs. As a result, there are high possibilities for a consumer to purchase a counterfeit under the pretext of being a knockoff.
Both knockoffs and counterfeits are sold on online websites and there are high chances that they overlap. Hence, the consumers think they are buying a knockoff when they are actually buying a counterfeit.
The prices of knockoffs and counterfeits do not differ much. Knockoffs are sold at a lower price as compared to that of a counterfeit. The consumers who fail to distinguish between the two might buy counterfeits in place of a knockoff.

Mannerisms of counterfeiting: A difficulty to detect

As per the data of International Chamber of Commerce, counterfeiting has become a multi-billion-dollar market and it comprises of more than 7% of the world trade. The counterfeits are gradually improving in quality that resembles the original in texture of the material, design and also the trademark. Consequently, it is getting tougher to differentiate them from the genuine apparels. The counterfeiters give a high-quality fake an AAA tag which implies that it is hardly possible to figure out the difference between the fake and the original. With the advancement of technology, the counterfeiters use 3D printing with specialised inks to create exact replica of the logo, holograms as well as the intricacies of the designs. The detailed packaging of these fakes is also a deceptive tool for passing them off as originals. The e-commerce platforms help the counterfeiters to trade on fake products by providing a scope to hide their identity and shut their website in case they sense that they are being detected. Due to this liberty given by the online marketplace, the counterfeiters use pictures of genuine products to attract consumers to buy the fakes manufactured by them. The websites that e-commerce platforms redirect to are designed to resemble a trustworthy authentic site.

Measures to combat counterfeiting

Technology has developed tags like Radio frequency identification (RFID) and Near Field Communication (NFC) tags to provide authenticity to a product only to an extent as these are not unerring technologies. Although it is difficult to clone the unique identifiers in these tags, their physical features can be copied by using 3D printing technology which sometimes facilitates in successful circulation of counterfeit fashion items.
Recently, a technology of fluorescent cholesteric liquid crystals (FCLCs) has been innovated in order to create coded tags and unique labels containing distinct visual patterns that are challenging to replicate. This anti-counterfeiting technique would help to secure the high-end fashion products as imitation of FCLC is almost impossible without special technical know-how but that there exists a bleak chance of cloning by counterfeiters cannot be negatived.
As the counterfeiters misuse the e-commerce platforms to circulate the fakes, it is a duty of the intermediaries to keep a check on the sale of counterfeit products by exercising due diligence followed by disabling access to them if any. Any failure in carrying out these mandatory activities would make the intermediaries liable.
Taking initiatives to spread awareness among the consumers about the differences between knockoffs and counterfeits and educating them about the ways to identify and differentiate them from one another.

Counterfeiting- The necessary evil

Although counterfeits and fakes in the fashion industry negatively impact the luxury brands in numerous ways, it fosters improvement in the luxury brands to stand out in the apparel market. It also has the potential of building a perspective in the minds of buyers that rules in their favour.

Increases awareness of the original brand among the consumers: Creating awareness about the existence of a brand is one of the most important pillars for having enormous sales. This is done by means of advertisements, content marketing etc. that demand investment. But, counterfeited products have an extended and wider reach among the consumers thereby creating awareness about the brand identity.
Increased willingness of consumers to pay for the original brands: Luxury counterfeits in the market foster an increased willingness in the consumers to pay for the original products. This is because of a psychological impact that the counterfeit products have on the consumers which is driven by a wide difference in quality between the counterfeit product and that of the original product.
Enhance the product quality: As it is constant concern of brands to establish a difference between counterfeiters and themselves, it pushes them to invest in materials of better quality for use in their manufacture.
Making brands tech-savvy: Counterfeiting has the potential in making brands aware of the technologies that they can use to protect their identity against the counterfeiters. Few technologies include RFID and NFD tags, QR codes, and many more.
Helps develop innovative ideas: In order to stand out amongst the counterfeiters, brands make efforts to bring in innovative ideas stay ahead of counterfeiters. This also involves technological advancements in brands.

Conclusion

Knockoffs in fast fashion industry help designs of latest runway trends to reach to the public at a faster pace and also motivates the reputed brands to thrive harder to rapidly introduce newer designs into the fashion industry. But, there is a need for stronger IP laws for a clear demarcation between knockoff and a counterfeit in order to prevent the sale of counterfeits as knockoffs resulting in losses to consumers and the brand. It is important to bring in robust technologies to detect counterfeits and catch hold of any cloning of security holograms attached to the products. Moreover, adequate measures should be taken to educate and spread awareness as to the ways to differentiate between a knockoff and a counterfeit.