Indie designers are being copied by small-scale peers – and there’s almost nothing they can do about it

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Imitation may be the sincerest form of flattery for some, but in the fashion and design world it can easily hinder the success of a brand. And while there are many examples of mass-market retail giants ripping off indie creators, Lisa Mesbur reports that independent designers also find themselves being copied by their small-scale peers – with little recourse

I first encountered designer Arielle de Pinto's work in 2008 at a small west-end Toronto boutique. Under the glass display case lay several minimalist necklaces, artfully spread out to emphasize the luminous chain bibs, crocheted and knotted into web-like patterns. When I tried one on, gravity pulled the chains downwards, causing the webbing to collapse gracefully into an inverted pyramid, softly and organically, as though it had a life of its own. It was slightly weird and incredibly covetable – and totally unlike anything I'd seen before.

It's no surprise that these days, the Montreal- and New York-based de Pinto's designs have a cult following and sell internationally at taste-making boutiques like Assembly New York and London's Dover Street Market. No surprise, either, that her work has inspired legions of copycats. Today, a Google search for "crocheted gold chain jewellery" turns up not only de Pinto originals, but a parade of verging-on-indistinguishable designs by local hipster boutiques, Brooklyn Flea vendors and slick indie competitors from Montreal to Melbourne. All riff on the technique that de Pinto spent two years developing and perfecting before the launch of her line in 2007. "I see it happening all the time," de Pinto says. "It happens to everybody."

Knocking off – or, as it's often euphemistically cast, "drawing inspiration from" – the designs of small, independent artists has been fast fashion's MO for years. It's an open secret that companies such as Urban Outfitters, Zara and Forever 21 staff not only cool hunters but intimidating legal teams, and generally emerge unscathed from copyright infringement disputes. But despite the internet-fueled moral outrage that often accompanies tales of The Man stealing from the Indie Darling, the issue seems to get a lot less press when it's other independent designers who are doing the copying.

In Canada, small labels like Toronto-based decor brand Bookhou and accessories line Pip Robins have been contending with indie knockoffs of their distinctive designs for years, mainly outside the confines of a law office. "After six years running Pip Robins, I'm still surprised when other small business owners freely copy my designs," says company owner and designer Gillian Hyde. "I had an experience where another independent designer copied my sewn cowls pretty much exactly – same fabrics, same colourways, even the same product shots. It was kind of a wake-up call that once I put my designs out into the world, anyone can copy them and there's not much I can do about it."

Legal action (which could be as simple as sending a cease-and-desist order) occasionally happens, although full-scale litigation is rare. "Independent fashion designers do frequently have their designs and looks copied in whole or in part by other independents," says Len Glickman, a senior partner in the Business Law Group at Cassels Brock & Blackwell LLP. "We've been retained by designers in Canada, the U.S. and the U.K. whose designs have been copied." Glickman suspects that part of the hesitation of smaller brands to take action is about not being able "to devote the necessary financial resources to full-scale litigation."

"It comes down to respect between designers," as Reilly Hodgson, founder of Toronto's No Fun Press, sees it. "Like, 'You should know that I already did this and I've been running with it.'" After founding No Fun from his bedroom in 2011 (motto: "Negativity is our Specialty!"), Hodgson quickly found an audience for the winking misanthropy of his grumpcore apparel, patches and pins. But Hodgson didn't anticipate the reaction to one of his first designs, a T-shirt featuring a simple, block-font "Anti-You" printed in an arc across the chest, à la seventies high-school team jersey. Within months, Anti-You knockoffs – complete with identical arc and blockish font – appeared in several independent Etsy shops, some even featuring Hodgson's product photography.

"As someone who runs a small business and cares about the designs I'm putting out, I try to do my due diligence when I'm creating products," Hodgson says. "It just really surprises me that these smaller, independent brands and companies don't bother."

Of course, social media has a way of obscuring an image's origin, a fact that many young designers are aware of. "Putting stuff on the internet, in a way, is your best friend and your worst enemy," de Pinto says. "You get [your work] out there…but then of course it circulates, and you never know who is going to do what with it." Hodgson agrees. "In 2011, tumblr was a really great place to promote your work, but the double-edged sword is that it's also a great place for people to rip off your stuff. People see it on the internet, know it's popular and don't care where it came from – they just think it's fair game."

Independents who want to protect their work must navigate the complex – and occasionally confounding – world of intellectual property rights, including trademarks, copyrights and design patents. Glickman recommends that independent designers take a number of steps to protect their work. In their agreements with freelance designers, for instance, they should ensure that all rights in and to the designs are owned by the company and that the designer waives his or her moral rights to the designs. He also suggests registering core brand names and logos as trademarks in key markets; registering core trademarks as domain names in all general top-level domains (and country-code top-level domains); registering "signature" designs as artistic works under copyright legislation; and using proper trademark and copyright notices on products, packaging, labels, hang tags and the like. In countries that have border protection, registering the trademarks and copyrights with border services such as the Canadian Border Services Agency is another good idea, because it means the designer can have the infringing goods seized at the border, if necessary.

"When I started, I didn't think I'd have to lawyer up or trademark anything because I didn't think anyone would try to steal it," Hodgson says. "Obviously, I was much younger and more inexperienced then."

What's more, Glickman notes, "if the infringer digs in their heels and refuses to cooperate, the costs of full-blown intellectual property litigation can quickly escalate to tens of thousands of dollars. It can be disproportionate to the potential damages that might be awarded to a successful plaintiff."

While many independents balk at the idea of entering into a David vs. Goliath-style legal battle with a big brand, reaching out to peers may feel slightly less intimidating.

Hodgson likes to communicate directly with copycat competitors, but results vary. "I'll send emails, saying, 'Hey, you copied this! I don't know if you know you copied this, but you probably do…so, you know, quit it.'" Hodgson pauses. "Some people get really defensive and rude."

But the issue of creative ownership can be a murky business. In a culture that thrives on the fluid exchange of ideas and inspiration – and given that, in certain seasons, a particular motif can seem to pop up everywhere – is it possible for an independent designer to lay claim to a particular image, idea or technique?

Both Hodgson and de Pinto insist that in certain cases it is. After Hodgson doodled the phrase "anti-you" into one of his notebooks back in early 2011, he spent countless hours on the internet ensuring that no one else had used it yet. De Pinto, meanwhile, upholds that her experimentation with manipulating fine chains into works of wearable art was accomplished alone over several years, without signposts or examples to work from. "It's basic crochet – it's easy to do," she admits. "But if I hadn't done it [first], 95 per cent of the people doing it now wouldn't have had the idea to do it."

According to Glickman, it's crucial for independent labels to fight back. "Even if the imitations are already out there in the market, intellectual property rights owners such as independent fashion designers have to enforce their rights and be seen to be enforcing their rights," he notes. "Otherwise, the copying will continue."

Now, designers like de Pinto and Hodgson are getting organized, wising up to the rules of the game while planning for their creative futures. They also have one not-so-secret weapon up their sleeves: originality. "My business is kind of founded on cultivating original ideas," de Pinto points out. "What I have that these people don't have is that I will continue to experiment, using my own visual language. I'm not saying they're not creative…but I will never copy."