What can direct-to-consumer brands do about copycats?
Copycat brands make life difficult for both brand owners and consumers. What can be done about them?
In the world of direct-to-consumer brands, there exists a familiar domino effect. One brand launches with a new look and feel and soon a crop of "inspired by’" competitors spring up. The result is branding phenomena like blanding, the made-for-Tiktok look and feel, and, no doubt, whatever design trend is set to take over next.
A number of brands have, however, found themselves on the bad side of the blurry line between inspiring others and being copied.
A year after it launched in 2016, sustainable footwear brand Allbirds noticed that counterfeit versions of its product were popping up online. “In Europe, there was even one company that somehow had found old molds we’d use, scraped our names off of it, and put those up on the internet,” cofounder Joey Zwilliger told the Business of Fashion in 2019.
Zachariah Reitano, the cofounder of telehealth company Ro, went as far as writing a viral Medium post claiming “if someone copies you, you should be flattered,” in reference to accusations it was leveling at a direct competitor, while plant-based nugget brand Nuggs’ marketing lead Andrew Watts has in the past called out a brand on Twitter for mimicking the vegan chicken nugget maker’s irreverent memes.
Fans of CBD soda Recess have pointed out the similarity between it and a Canadian competitor’s flavor range, while pet supplements brand Goodboy has spent over $5,000 sending cease-and-desist letters and exploring legal action against the numerous "me too" brands it has encountered. The examples go on, and on.
Brendan Palfreyman, an intellectual property lawyer based in New York, says that while “there are very few original ideas any more,” there are distinct legal lines that can be crossed.
For things protected by trademark, like slogans or even individual colors (Glossier, for example, has trademarked its pink packaging), a breach will have taken place if it’s feasible that consumers would get confused between the two brands.
When it comes to copyright, which applies to creative expressions such as the things a brand writes or the code behind its website, if a “substantial similarity” can be shown between the original and a copycat, there could be a legal case.
Legal action is expensive. While sending a cease and desist letter can come in at a fairly reasonable $1,000, things start to get more pricey once complaints are filed with the courts, (Palfreyman says this step costs around $3,000), while taking the case all the way through a trial “can easily cost you in the hundreds of thousands of dollars.”
“Almost all cases settle before that,” he adds. “But sometimes it’s worth it. If you’re a one product company – that’s your entire company. It’s often worth it to at least start the process.”
A much cheaper option is to take the complaint public – but this method isn’t without its risks. “You do have to be very careful to not expose yourself to any liability like slander or libel,” Palfreyman says. “I wouldn’t do it unless I was confident.”
When Goodboy was dealing with the brands it considered its copycats, in addition to sending out legal letters, founder Kari Sapp took her complaints to the press, selecting publications she thought her customers were likely to read.
If she could do it all over again, though, she says she would probably try to handle things privately, brand to brand. “You’re always learning what you should pursue and what you shouldn’t,” she says. “I wouldn’t spend so much money on legal fees [again], because at the end of the day if you’re not really willing to pursue it, there’s not a ton you can do other than let them know that you see what they’re doing.”
However, she does add that what she believed to be Goodboy’s most egregious copycat – which had lifted wording from the brand's website – did overhaul its brand within three days of receiving a cease and desist letter.
Vicky Simmons, the founder of greeting card company Mean Mail, says she has encountered numerous brands copying the humorously harsh messaging that appear on Mean Mail’s cards. She has never taken another brand to court, and she has a personal policy of not naming names if discussing the issue on social media or in the press. But does say she will always “let people know how I feel,” particularly if she believes that a brand is actively “pretending to be my product in the market, and fooling a consumer into buying it.”
“It’s about protecting your energy” as a brand owner, she says, on her choice to not take legal action or go public about her copycats. “Having a big old rant online isn’t going to do [anything].”
Companies can protect certain aspects of their brand. Palfreyman says a trademark application in the U.S. costs $250, while a copyright fee is around $50, plus the cost of lawyers to help complete the paperwork. Patents, which are useful for brands that have developed their own product formulations or physical product designs, can cost tens of thousands of dollars, and tend to be too expensive for many early-stage brands to pursue.
But even with copyright protection, the legal tests when it comes to figuring out if someone has actually copied you can be tough to meet, and are difficult to enforce if the alleged offender is based in another part of the world.
“It’s hard to really prevent this from happening, which is really the frustrating part,” Sapp says. “Because at the end of the day, it always boils down to who’s the bigger fish, and who has the [money] to pursue something legally.”
She says the important thing for brands and customers to keep in mind is that it’s inevitable that brands launching in the same product category will share some similarities. “There’s really only so many points you can hit on,” she says. “Organically, there is going to be a lot of ‘inspired by.’ Even when we were launching our brand, we were inspired by people in other spaces.”
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