This post addresses several variations of an all too common story, a designer is gaining traction on her designs, getting known for a particular style, feeling some success from her efforts, when suddenly a friend emails; "Take a look at these designs," the friend says. "They're just like yours." As the designer, you're understandably feeling harmed, disrespected and worried. But before you fire off an angry email to the copycat, read through this post to plan out your strategy. This post is meant to be general information, not legal advice, so if you are seeking counsel on your unique situation, please contact an attorney.
Note: The opinions expressed in this post are by the author, Rachel Fischbein, Esg., founder of Law On The Runway, and do not necessarily reflect the opinions of ASKHarriete or Harriete Estel Berman. No endorsement or refutation is implied. Images are provided by Harriete.
What is a copy?
Shocked and surprised when we see a copy of our work or ideas the first step is to examine the copycat version carefully looking to see what is being repeated. Is it the unique idea captured by product, or is it the design of the product? If it is the design of the product, did the copycat repeat the functional or useful aspects of the product, or is it the stylistic and aesthetic parts of the design that were copied? Did the copycat try to imitate something about your product that displays your brand identity?
Functional or Useful Aspects of the Products:
If the copycat looked at your product and saw how the product worked, and decided to recreate the functionality portions of the product, you could look only to patent law for protection. Once your product is released to the public, anyone may copy the functional aspects of your product, unless you have filed for a patent and secured the rights to exclude others from that design.
Aesthetic or Non-Functional Aspects of Your Design:
The parts of your product design that were meant to be pleasing to the eye, and not serve a functional purpose are easiest components to protect from copycats. We typically use copyright laws as protection for designers, but design patents can be used as well. If the copycat recreated your unique print pattern, etching design, drawing, photograph, painting or 3D sculpture design (including aspects of jewelry that look like small sculptures) you may be able to stop the copycat.
Is the copycat trying to make the products look like they came from your business? Could a consumer be confused in determining if you and the copycat are the same business or separate businesses? If the copycat is trying to make the product look like it came from your business or is using similar branding, we look to trademark law for protection. Always keep in mind that trademark law has two functions, to protect the business owner, and also to protect the consumer from being confused about the origin of a product.
Document & Create Timeline:
After you identify what makes the product similar to yours, its time to document what is happening, before you reveal to the copycat that you're aware of the situation.
If the product is for sale online:
- Take screen shots of the listing.
- Look to see if there's a history of reviews?
- How long ago did the copycat start selling the product?
- Look at the copycat's social media.
- Has the copycat mentioned this product?
- How long ago was its first mention?
- If it’s a small business doing the copying, dig into the identity of the copier.
- Do you know them?
- Could you have seen each other at a trade show or event?
- Did they enter your booth, discuss your work, or attend a workshop you gave?
Get all the facts organized.
- Figure out who's product was created first.
- Determine if the copier had access to your work or would have been prompted to discover your website and saw your public product listings.
- If they have repeated your functional design aspects, look to see if they have any mention of a patent on the product, such as a patent serial number. You can also use Google Patent Search for a preliminary investigation to see if someone else actually holds a patent on the design you thought was uniquely yours!
Decide What You Want to Best Benefit Your Business
As a designer, you're probably creating products out of passion, but also desire financial success for your efforts. Sometime we can take moments of negativity, such as discovering a copycat, and turn them into a business opportunity.
Instead of approaching the copycat with hostility and anger (and a threat of a lawsuit) consider alternatives.
- Could the copycat bring something desirable to your business, such as a new customer base or a chance to license your designs to the copycat?
- Think strategically about how you can get the copycat, who clearly believes in your products or business to bring you into their profits.
- Lawsuits are slow moving and expensive. Perhaps working together with your copycat will provide the biggest and quickest reward.
Working through creative ways to benefit from the copycat’s actions brings us to our next post, sending that first letter to the copycat....
Stay tuned for the next two posts by Rachel Fischbein, Esg.
The next post will be about the Initial Copycat Communication.
The final post in the series will be about the issues of public shaming of a copycat to gain the attention of the copier. and hopefully, generate a resolution.
Follow this series:
Post Guest Author:
Rachel Fischbein is the founder of Law On The Runway. She primarily assists fashion and beauty entrepreneurs as they build the foundations of their companies and navigate contractual relationships. She has been published by Women 2.0 and Young, Fabulous, & Self- Employed Magazine. Ms. Fischbein is also on the board of directors of PeoplewearSF, a nonprofit supporting the Bay Area fashion industry. Rachel is a frequent presenter on topics such as intellectual property rights within apparel and jewelry designs, privacy law issues of wearable technology,
and the regulations of social media and blogging.
This post was updated on December 11th, 2021.
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