Copycatting in fashion, beauty is more harmful (and prevalent!) than you think

From a young age we are taught that copying our peers’ work is wrong. Their intellectual property–whether it’s a kindergarten macaroni necklace or Pulitzer Prize-winning literature–is just that: their property.

Federal law mandates that intellectual property receives copyright protection from the moment it is fixed in a medium, according to the United States Copyright Office. In short, the second an idea leaves your mind and becomes something tangible (i.e., perceptible to at least one of the five senses), it is copyright protected under U.S. law.

But, that didn’t stop the classroom bully, and it certainly does not stop big-name fashion and beauty retailers. The rise in fashion and beauty bloggers and YouTubers has created a new environment in which dupes can not only breed, but thrive.

Beauty gurus (and aspiring beauty gurus) share countless dupe guides on social media platforms like Pinterest. Dupe guides compare high-end products their low-end counterparts. [source: Pinterest]
“Everyone has gotten so fucking lazy in [the beauty] industry. There. I said it. There are some beautiful things out there that the labs are doing, but no one bothers to do it,” writes Glossible‘s Sonia Roselli.

“Why? Why bother? Copycatting is big business and it’s faster to get to market. There is no better time than now to be in the cosmetics manufacturing game. Cosmetic labs are working at full capacity and some aren’t even taking new customers, thanks to social media.  But because of social media, I find that we are going down a path that is bad for all of us.”

According to Roselli’s post, the biggest names in beauty knockoff products from small brands such as Viseart, Melanie Mills and PPI. Their motive?

“If I were being completely honest, in my opinion, most big cosmetic companies don’t even TRY anymore. And it’s not just the cosmetic companies, it’s the labs and manufacturers too who take direction from these companies.  I imagine the chemists are crying in their glass beakers because they WANT to create innovative products but the companies won’t let them. Why? Because copycatting is big business and easier to do.”

Roselli also notes that copycatting runs rampant in the technology industry, as well, citing Apple’s recent lack of innovation.

“What happened to luxurious textures and colors that were perfect for skin tones? What happened to a brand being known for their foundation colors? What about a brand being known for their skin products? It’s all the same shit just a different day,” Roselli asks.

“To me the beauty industry looks a little something like this: We are the lions and the cosmetic companies just throw us a carcass.”

Viseart’s multicolor eyeshadow palette, which retails on Sephora.com for $80, has been duped by web-based retailer Morphe. Morphe’s so-called Picasso Palette retails for $14.99.

W-7, a UK-based cosmetics company, has not one, but three blatant knockoffs of Urban Decay’s famous Naked eyeshadow palettes. Naked, Naked 2 and Naked 3 retail for $54 each, while W-7’s dupes go for $12.95 each. The company also sells a bronzer called Honolulu ($5.30) eerily similar in color and packaging to Benefit’s Hoola bronzer ($29), a cult favorite.

There is also e.l.f., a drugstore beauty brand also known as Eyes, Lips, Face. Roselli notes the similarities between e.l.f.’s Pink Passion blush ($5.30) and Nars’ Desire blush ($30), and mentions that the brand is a notorious industry-wide copycat.

W-7 In The Buff: Lightly Toasted palette versus Urban Decay’s Naked palette [source: Pinterest]
“Most people don’t realize how or why copycat imitation hurts our industry, or for that matter, even care,” Roselli writes.

“As a pro makeup artist, I can go our right now to any Ulta or Sephora and tell you that 85 percent of all makeup is complete and utter bullshit. Don’t believe me? Go on any Facebook group that caters to professional makeup artists and you will see a surge in going back to old brands…Graftobian, Ben Nye, RCMA just to name a few…Why? Because the big brands are not listening to working pros. They are listening to beauty bloggers.”

While some beauty bloggers and vloggers are truly trustworthy and informative, Roselli insists there are many who are quite the opposite:

“I think [bloggers] have an interesting place in the industry [because they] allow people to discover new products. While a lot of bloggers out there are great (especially the ones that have worked in the industry for years), these aren’t the ones I’m talking about here. I’m talking about people who have no clue about beauty.”

These bloggers care more about making money than they do about creating quality content or sharing what they’ve learned with a larger community.

“Over the last few years, beauty bloggers have become puppets for the cosmetic companies,” Roselli continues.

“Last year, I sat in on a big meeting with some higher up cosmetic level execs who were giving a talk on how they utilize social media influencers.  The story went a little something like this: A very popular Youtube beauty blogger was given $100,000 to blog about a new product that was coming out.  (Yes, you read that correctly: 1 video. 15 minutes long. $100k). But, guess what? Her videos drove over $2 million in sales in one day! As a matter of fact, [in] minutes. [The blogger] said exactly what [the cosmetics company] wanted her to say (in her own words of course).”

As long as cosmetics companies can rely on big-name beauty bloggers and YouTubers, they can continue to make shoddy dupes of high-end products an end up with a pretty spectacular return on investment.

“That means these cosmetic companies can make absolute bullshit products and not care about the actual product they produce because they have beauty bloggers to drive the sales. So, they rip each other’s products, have a pissing match on who can knock it off better and play this game of cat and mouse to see who has the bigger balls,” Roselli writes.

Jenn Im, YouTuber behind Clothes Encounters, sports a slip dress by Necessary Clothing, a trendy fast fashion retailer. [source: Instagram user @imjennim]
Crushed Velvet Zillah Slip Dress in Blush by Are You Am I, $675 [source: Are You Am I]
However, Roselli doesn’t blame any beauty blogger for what they do; in fact, she applauds their ability to be so influential.

“Secretly, I laugh and say, ‘go girl!’ to the beauty blogger and wanna high five her after she hits ‘publish’ on her YouTube channel. It’s this double edge sword that is creating a sea of mediocrity in the marketplace. And who loses? We do, the pro and the consumer. ”

Nonetheless, it is the process in itself that perpetuates the lack of quality products currently on the market; Roselli insists it is a vicious cycle.

“The cosmetic companies watch social media trends, give the masses what the think they want, and use the beauty blogger to promote the sales. What are we left with? Subpar bullshit,” she writes.

“If beauty blogger tells you that the Waffle House yellow foundation she is using is the best thing since Netflix on a cold rainy day, well guess what? People believe her. Then, women are left with crappy products that don’t perform and are constantly shopping for something that works, leaving us in a constant state of searching for the next hero product for ourselves.”

And, the same can be said for fashion. It doesn’t matter anymore what’s on the runway or what’s in the most esteemed fashion magazines. Consumers are more likely lust after looks they see on the most influential bloggers and vloggers, who in large part promote fast fashion (whether they realize it or not!), according to The Fashion Law.

In addition to being a violation of intellectual property, fast fashion negatively impacts both garment workers and the environment, as well as consumers. From an article published in 2014, The Huffington Post notes a number of toxins found in garments from several popular fast fashion retailers.

“According to the Center for Environmental Health, Charlotte Russe, Wet Seal, Forever21 and other popular fast-fashion chains are still selling lead-contaminated purses, belts and shoes above the legal amount, years after signing a settlement agreeing to limit the use of heavy metals in their products,” Shannon Whitehead writes.

“Lead exposure has also been linked to higher rates of infertility in women and increased risks of heart attacks, strokes and high blood pressure. Many scientists agree there is no ‘safe’ level of lead exposure for anyone. The lead contamination is all in addition to the pesticides, insecticides, formaldehyde, flame-retardants and other known carcinogens that reside on the clothes we wear.”

[source: takepart.com]
Whitehead also goes on to explain the impacts the fast fashion industry has on the environment:

“The average American throws away over 68 pounds of textiles per year. We’re not talking about clothing being donated to charity shops or sold to consignment stores, that 68 pounds of clothing is going directly into landfills. Because most of our clothing today is made with synthetic, petroleum-based fibers, it will take decades for these garments to decompose.”

Fast fashion retailers also exploit garment workers in developing countries, because these countries do not offer labor laws that protect their workers.

“Industry estimates suggest that 20 to 60 percent of garment production is sewn at home by informal workers, according author Lucy Siegle in her book, To Die For: Is Fashion Wearing Out the World?

While there are machines that can apply sequins and beading that look like handiwork, they are very expensive and must be purchased by the garment factory. According to Siegle, it’s highly unlikely that an overseas factory would invest in the equipment, particularly if the clothing being made is for a value-driven fast-fashion label,” Whitehead continues.

“Carrying out her own investigation, Siegle learned that millions of desperate home-workers are hidden in some of the poorest regions of the world, ‘hunched over, stitching and embroidering the contents of the global wardrobe…in slums where a whole family can live in a single room.’

Often with the help of their children, the home workers sew as fast as they can and for as long as daylight allows to embellish and bedazzle the clothes that end up in our closets. Siegle goes on to say, ‘They live hand to mouth, presided over by middlemen, tyrannical go-betweens who hand over some of the lowest wages in the garment industry.'”

Kiini settles lawsuit with notorious copycat Victoria’s Secret

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.

Kiini original bikini [source: Lyst]
Victoria’s Secret dupe [source: Bikini Mecca]
“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.”