Knockoffs are all too common in the world of fashion–especially now that social media allows retailers to have an inside look at their competitors’ inner workings.
The latest high-profile lawsuit, involving New York-based swimwear brand Kiini and famed lingerie powerhouse Victoria’s Secret, was settled late last month, despite the fact it was filed in October 2015.
“According to Kiini’s complaint, Victoria’s Secret produced a bathing suit that looked ‘virtually indistinguishable’ to its original bikini design. Though the terms of the settlement are confidential, the [law]suit is worth reflecting on,” The Fashion Law writes.
“Kiini, which has gained a ‘cult-like following and is known for the original, distinct, copyright-protected swimwear designs,’ initiated the action against the lingerie giant for copyright infringement, trade dress infringement, and unfair competition.”
There are tons of Kiini dupes on the online market from small web-based boutiques nowadays, but when a retail giant like Victoria’s Secret blatantly copies a high-end swimwear brand, there are several complex lessons to be learned.
“As Kiini set forth in its complaint, Victoria’s Secret allegedly marketed and sold an infringing copy of Kiini’s well-known bikini design ‘in the pursuit of its own self promotion and profit, and to Kiini’s unfair harm and detriment,'” The Fashion Law continues.
“The Kiini swimsuit in question–which is stocked by high end retailers, such as Barneys, Bergdorf Goodman and Net-A-Porter, and retails for $165 for a top and $120 for a bottom–has ‘become a much sought after bikini.'”
The pricey bikinis, worn in a number of editorials, as well as by celebrities like Heidi Klum and Cara Delevingne, are known for their amazing attention-to-detail and stunning bohemian design are obviously of the highest quality. Not to mention, they are ultimately a product of Ipek Irgit’s, the brand’s founder and creative director, intellectual property.
“Irgit obtained federal copyright protection for the bikini design in December 2014, making Kiini the ‘sole and exclusive owner to all right, title and interest in and to the copyright to the design,'” according to The Fashion Law.
“The brand alleges that in addition to enjoying federal copyright protection, it has developed trade dress rights, as ‘the purchasing public has come to associate the distinct Kiini trade dress with Kiini, and Kiini trade dress has achieved secondary meaning.'”
The trade dress at hand?
“[It] consists of: ‘1) a triangle profile bikini; 2) a distinctive, rectangular crochet pattern that borders the edges of the bikini; 3) the rectangular geometric pattern is doubled at the bottom edge of the bikini top, and the top edge of the bikini bottom; 4) bright color blocking resulting from a woven interlaced pattern of contrasting colored and textured material, specifically elastic and crochet yarn; and, 5) the bikini top’s upright triangle profile and the bikini bottom’s upside down triangle profile,'” according to The Fashion Law.
“For the uninitiated, trade dress extends to the total image of a product and can be based on shape, size, color, texture and graphics. In order to be eligible for trade dress protection, a design must serve as a non-functional identifier of source.”
Furthermore, “per Kiini, the triangle designs featured on the bathing suit at issue are in no way functional and that ‘the only reason to copy the Kiini trade dress is to attempt to trade off its goodwill and draw sales away from Kiini. This is exactly what [Victoria’s Secret] has unfairly and unlawfully done here.'”
Unsurprisingly, this is not Victoria’s Secret’s first rodeo. In 2012 the California-born, Ohio-based lingerie retailer was sued by Zephyrs, a hosiery supplier, for selling shoddy versions of their designs.
“Zephyrs filed a complaint in federal court in Ohio charging the lingerie behemoth with using images of its products on packaging and in-store product displays, while selling a cheaper version of the product inside,” according to The Huffington Post.
“In a nutshell, Victoria’s Secret used to sell Zephyrs’ Italian-made hosiery, but cut ties with them, switched to a Canadian supplier and allegedly didn’t change images or text on the packaging, except for adding a ‘Made In Canada.’ In addition to the $15 million for breach of contract, Zephyrs is also seeking “corrective advertising” and a recall of the accused products.”
The parties settled out of court for an undisclosed amount and “mutually agreed to dismiss the claims and counterclaims with prejudice,” according to The Fashion Law.
More recently, in 2015, Victoria’s Secret began copy-catting Triangl, another upscale swimwear brand. The distinct sporty swimsuits feature thick black lines that separate blocks of bold colors. Via social media platforms like Twitter, The Fashion Law then went on to explain that Australia-based Triangl is the one of world’s most-copied swimwear brands.
Flipping through Victoria’s Secret’s catalogs or strolling through a brick-and-mortar store, nearly anyone in the fashion or retail industries will notice the company frequently knocks-off designs from high-end brands like Kiini, Triangl and Gooseberry Intimates, a world-class French lingerie label.
“Kiini goes on to bolster its claim by stating that it is not the only one who noticed the similarities between its designs and the Victoria’s Secret copies. According to Kiini’s complaint, ‘several discerning customers have generated electronic content posted on popular social media, referring to the Victoria’s Secret copy-infringing design, and stating: ‘totally Kinii [sic] knock off,’ ‘Kiini copiers,’ and ‘Victoria’s Secret knock off Kiini,'” writes The Fashion Law.
“The complaint continues on to note that the similarities between its design and the Victoria’s Secret copy gave rise to actual confusion amongst consumers and offered evidence that consumers ‘queried on photos’ of the Victoria’s Secret copy, asking: ‘Is this a Kiini swimsuit or a Victoria’s Secret?’ Victoria’s Secret allegedly ignored the customer comments ‘chiding it for stealing the Kiini design, and they continue to intentionally market and sell their imitations.'”
Despite the number of copyright- and patent- based lawsuits Victoria’s Secret has faced, it seems the company is not slowing down its infringing design procedures. However, The Fashion Law makes an interesting point regarding the company’s practices:
“Interestingly, in the time since [Kiini] filed suit, Victoria’s Secret has folded its swimwear division entirely to focus exclusively on lingerie and loungewear.”