THE PROS AND CONS OF KNOCKOFFS
Table of Contents
Definition of knock-offs
Definition of Generics
Similarities or Differences between generics and knock-offs
Differentiating knock-off from Counterfeits
Necessity for the H.R. 5055 Design Piracy Prohibition Act
Definition of Knock-offs
Merriam-Webster online dictionary defines knockoffs as “a copy that sells for less than the
original; broadly: a copy or imitation of … something popular.”1 Freedictionary.com defines
knockoffs as an unauthorized copy or imitation, as of designer clothing: "the place to go for
quality knockoffs" Women's Wear Daily.2 Wikipedia defines a knockoff as an imitation of the
“well-known one … sold for a lower price and … [is] of inferior quality, there is usually no
attempt to deceive the buyer, or infringe upon brand names, patents, trademarks or copyrights.”3
Knockoffs refer to “a colloquial term used in reference to new product innovations which are
almost identical, look-alike copies of competitors' best-selling items.”4
One may conclude that Knockoffs are also derivatives. Its appeal and strength come from
the original brand. Knockoffs cannot exist without an original. According to Merriam-Webster
online dictionary, a parasitic object is “something that … [depends] on something else for
existence or support without making a useful or adequate return.”5 Hence, it is almost parasitic in
nature.
Differentiating knockoffs from counterfeits
The honorable aspect of knockoff is there is no intent to deceive. Counterfeit on the other hand,
requires intent to “deceptively represent its content or origins.”6 While knockoff is a crime
against the designer, counterfeit is a crime against both the designer and the public i.e.
consumers. Knockoffs “… are, for the most part, targeted at an entirely different market
segment—people who appreciate high style but can’t afford high prices.”7 Counterfeits are fakes
being passed off as originals. Knockoffs are designer lookalikes being sold for less. Accordingly,
the public outcry against counterfeits effectuated the law against counterfeiters.
Similarities or Differences between Generics and Knockoffs
The Food and Drug Administration website define generics as “… identical, or bioequivalent to a
brand name … in form … quality and intended use.” In other words, generics are synonyms for
knockoffs. “Generics … seem the quickest way to lower ... costs … . [Knockoff specialist]
makes money selling generics for just one-fifth the price of their branded equivalent. Knockoffs
[are] approximations of the original. [Andreas Rummelt, CEO of Sandoz Pharmaceuticals, the
generics business of Swiss pharma giant Novartis] says “[the] ultimate goal is to achieve
substitutability … .”’8 These words aptly sum up the similarities between generic drugs and
knockoffs. Generic means “pertaining to, or applicable to all the members of a … group, or kind.”
“A generic drug is the chemical equivalent of a [brand or patented] drug … .” 9 A major
prerequisite for generic drug is that, the generic must be “therapeutically equivalent to the brand
name drug.”10
Knockoffs are substitutes for or equivalents of originality. There is no creativity in manufacturing
and producing knockoffs. There is no ingenuity in this process except of course, the act of
pilfering the original designs. Generic drugs are generally authorized while knockoffs are
perfectly legal. Knockoff artists acquire the original design, style and pattern by stealth. Generic
drug companies obtain the chemical components of the brand name drug through the patent
application filed at United States Patents and Trademarks Office (USPTO) or through reverse
engineering.
Necessity for the Design Piracy Prohibition Act
The Design Piracy Prohibition Act, a bill which was introduced in the House of Representatives
in April 2007, would “extend copyright protection to fashion designs for a period of three years
… [it would protect] the appearance as a whole of an article of apparel, including its
ornamentation, with “apparel”’ defined to include “men’s, women’s, or children’s clothing,
including undergarments, outerwear, gloves, footwear, and headgear … .” Perhaps, a reason why
the congress is slow in passing the Design Piracy Prohibition Act11 is a suspicion that the motive
behind the designers’ outrage against knockoff is the “worry [that] consumers will flee goods that
lose their aura of exclusivity, like Sneetches rubbing the stars from their bellies.”12 Rick Karr of
NPR says the “risk of confusion is the key legal test of whither a knockoff has crossed the line to
forgery.”13 Whoever buys a knockoff knows what he is getting; a cheaper imitation. There is no
confusion. The risk of confusion or likelihood of confusion test, for most part, is geared towards
protecting the consumers. Seymour of Marie Claire said there is room in stores for both originals
and knockoffs.
"If you go into any department store, you can take the elevator to one floor and
see the designer look and then take the elevator to the next floor and see the
interpreted look," she said. "It's like when you go to the Shop & Stop, you have
the real Raisin Bran and then the generic raisin bran. Both have their buyers.
Neither one has put the other out of business."14
It becomes deceptive and criminal if the manufacturer were trying to pass off his goods as those
of another or a name brand. Here, the knockoff artist accommodates the aspirations and desires of
the consumer to possess a lookalike of the original. Another reason militating against the H.R.
Bill is that the Copyright office’s “analysis noted there’s no data showing that knockoffs have
done any net harm to high fashion … ”15 unlike its kinsman, counterfeits.
There’s little evidence that knockoffs are damaging the [fashion] business.
Fashion sales have remained more than healthy—estimates value the global
luxury-fashion sector at a hundred and thirty billion dollars— and the high-end
firms that so often see their designs copied have become stronger. More striking,
a recent paper by the law professors Kal Raustiala and Christopher Sprigman
suggests that weak intellectual-property rules, far from hurting the fashion
industry, have instead been integral to its success.16
A major problem with passing the Design Piracy Prohibition Act is the discord within the
industry over whether or not to fight the knockoff artists. Derek Lam said “there’s no such thing
as original design, and I’d be the last person to say that I hadn’t been inspired by people like
Chanel and YvesSaint Laurent.”17 Designer Trina Turk was quoted as saying “[t]here’s nothing
wrong with being inspired by what’s around you. Our business has had a long and proud history
of knockoffs. That’s just part of the industry. I think it happens at the highest level of the market
and the lowest level. Why deny it?”18 The retailers’ lobby organization, the National Retail
Federation “ has not taken a position on the proposed legislation, said J. Craig Sherman, its vice
president for government affairs. "We are staying neutral on the matter," he said. "We tend to
take a position when there is a consensus in our industry on an issue. There is not a consensus on
this issue."19
Fashion appears to be its own worst enemy. Fashion bespeaks creativity, style, hard work
however it is also transient. Its ultimate purpose is functional. In Kieselstein-Cord v. Accessories
by Pearl Inc., 632 F.2d 989 C.A.N.Y., 1980, District Judge Weinstein dissenting said “ … works
sued on are, while admirable aesthetically pleasing examples of modern design, indubitably belt
buckles and nothing else; their innovations of form are inseparable from the more important
function they serve- helping to keep the tops of trousers at waist level.”
Council of Fashion Designers of America (CFDA) and other proponents of the bill argue that
knockoffs stifle creativity. It has been argued that knockoffs or “design piracy can wipe out
young careers in a single season.”20 The younger designer is the loser in the scheme of things.
Some say it reduces the snob appeal of the original designs. Allegedly, it cuts into the potential
profits of designers. Knockoffs eliminate the exclusivity of the original designs. It “commonizes”
the exclusive brands and “masstiges” them to the public. A major factor which hitherto has either
been ignored or avoided is the wishes of the consumers in this debate. “it is very understandable
from a shopper’s perspective that [knockoffs are so rampant] There is an anger that seething in a
lot of girls about the fact that they are shown image after image of these great clothes, but even
the cheapest steals cost $180.”21
The fact is the general public would like to experience a fraction of luxury or some level of
indulgence is so opulently displayed in movies and on television. CFDA and other proponents of
the bill need to address these issues and reconcile the differences.
Conclusion
For the bill to be successful, the internal conflicts within the industry must be resolved. It is not
surprising that the retailers denounce the bill, it is to be expected. What is baffling is the
disposition of other top designers. Their stance on the creativity and originality of fashion has
impeded the success of the bill. The CFDA and other defenders need to motivate and get the
contenders on board.
Some protagonists assert that design piracy or knockoffs can wipe out the young designer. This
argument does not hold water. Take for example Derek Lam; He is a relatively new designer. He
won the CFDA Perry Ellis Swarovski Award for New Designers in 2005. “He won the third
annual Ecco Domani Fashion Foundation Award …”22 Not only his brand is alive and
flourishing, he is ambivalent about the bill. This defeats the young designer argument.
Christopher Sprigman in his testimony before the Committee on the Judiciary, U.S. House of
Representatives, Subcommittee on Courts, the Internet, and Intellectual Property, argued that the
fashion industry has “registered uninterrupted annual increases [in the sales of apparel and shoes]
between 1945 and 2004, growing during this period more than twenty-fold.” He said “the
industry does business in excess of $180 billion per year, and [yet “U.S. [who] has not joined
other nations in addressing the issue of design piracy and its effects on the fashion industry”23] …
plays a substantial role in a global fashion industry worth almost $ 1 trillion annually.” 24 If the
industry continues to flourish in spite of legality of knockoffs, then defenders of the bill need to
provide a reasonable explanation for this.
Again the associations and designers clamoring for the Design Piracy Act must scale the hurdle
of utilitarianism. Persuade both the congress and the public that, knockoffs are generics and
therefore, require authorization or permits. For example because of the transient nature of the
fashion industry, three (3) years might be a long time for the public to wait for the original design.
A good compromise would be for the public to wait for a year before the generics are
manufactured. That way, the public will also benefit from the bill. They will not need to wait
(three years) for a product that is no longer in vogue. They must aggressively market the slogan
that it is the quality, not quantity that counts. If all else fails, appeal to the public’s sense of
fairness and tell them knockoff artists “are stealing at the expense of creativity.” Perhaps they
might be able to sway the public into thinking that Design Piracy Act is in everyone’s best
interest.
References
1 Merriam-Webster online dictionary
2 http://www.thefreedictionary.com/knockoff
3 http://en.wikipedia.org/wiki/Knock-off
4 http://www.babylon.com/definition/Knockoffs/English
5 http://www.merriam-webster.com/dictionary/parasitic
6 http://en.wikipedia.org/wiki/Knockoff
7 http://www.newyorker.com/talk/financial/2007/09/24/070924ta_talk_surowiecki
8 http://www.forbes.com/business/2007/03/14/biotech-generics-drugs-bizcz_as_0315biotech.html?partner=links
9 http://www.pamf.org/health/toyourhealth/drug.html
10 http://www.pamf.org/health/toyourhealth/drug.html
11 http://en.wikipedia.org/wiki/Design_Piracy_Prohibition_Act
12 http://www.american.com/archive/2007/september-0907/thou-shalt-not-knock-off
13 http://www.npr.org/templates/story/story.php?storyId=1434815
14http://www.nytimes.com/2006/03/30/fashion/thursdaystyles/30copy.html?_r=2&pagewanted=2
&oref=slogin
15 http://www.american.com/archive/2007/september-0907/thou-shalt-not-knock-off
16 James Surowiecki, the Piracy Paradox.
http://www.newyorker.com/talk/financial/2007/09/24/070924ta_talk_surowiecki
17 http://nymag.com/daily/fashion/2008/03/derek_lam_doesnt_knock_knockof.html
18 http://www.americanwaymag.com/aw/Lifestyle/trends.asp?archive_date=10/15/2005
19http://www.nytimes.com/2006/03/30/fashion/thursdaystyles/30copy.html?_r=1&pagewanted=2
&oref=slogin
20 Jeffrey Banks‘s testimony before the Subcommittee on Courts, the Internet and Intellectual
Property Committee on the Judiciary, U.S. House of Representatives. Hearing on H.R. 5055,
“The Design Piracy Prohibition Act”, July 27, 2006.
21http://www.nytimes.com/2007/09/09/weekinreview/09wilson.html?_r=3&ref=weekinreview&
oref=slogin&oref=slogin&oref=login
22 http://us_asians.tripod.com/new-05-03.html#derek-lam
23 Susan Scafidi’s testimony before the Subcommittee on Courts, the Internet and Intellectual
Property Committee on the Judiciary, U.S. House of Representatives. Hearing on H.R. 5055.
24 Christopher Sprigman’s testimony before the Subcommittee on Courts, the Internet and
Intellectual Property Committee on the Judiciary, U.S. House of Representatives. Hearing on
H.R. 5055.