“The hard thing is that these fake sites are in Asian countries, so it’s hard to find the people behind them to shut them down,” Böhme says. “If we did hire a law firm to go after them all, the cost is so high it doesn’t make sense. And another would just pop-up to replace it.”
Böhme is describing what Workman Nydegger Attorney Rick Gilmore refers to as the “Whac-A-Mole problem.” He’s somewhat optimistic about the enforceability of U.S. intellectual property (IP) law in China, even if it’s not uniform.
“China’s approach toward IP has been changing as they’ve matured from being copiers to innovators,” Gilmore says. “It’s forced them to embrace the value of a strong IP system. How much that attitude has evolved depends on the sector and location. Where there’s innovation going on, you have specialized IP courts that look at it differently than areas where mostly copying is going on.” Because China is not known for its fashion innovations, this does not apply as much to that industry, he adds.
Nicole Bruderer, founder of the Utah-based modest swimwear brand Lime Ricki, first noticed her products being knocked off in 2018. It began on Shein—which had entered the U.S. market a few months earlier—and then moved to other sites where the infringement was more overt.
“There are a bunch of China-based sites that all sell the same things and are really just duplicates of each other using different names and URLs,” Bruderer says.
Google gives advertisers the ability to run reports identifying the bestselling products in various categories updated in near real-time, based on each Google Shopping ad’s performance and conversion. Shein and Temu advertise heavily on Google Shopping, and it’s not unreasonable to conclude that Böhme’s intuition is correct: Shein and Temu’s production decisions are influenced by the popularity insights of other brands, which Google freely provides.
Logan-based boutique Downeast Basics sees very few of their products on knock-off sites, and that may be the exception that proves the rule. Senior Director of Marketing Greg Taylor reports that only a tiny portion of his advertising budget goes to Google, as he prefers more visual social media marketing channels.
It’s the hard knock(off) life
While Shein and Temu’s copying of designs is indisputable, the claim that they are guilty of IP theft can be argued both ways, as evidenced by yet another TikTok hashtag: #SheinStoleMyDesign. These videos document design theft stories supported by screenshot evidence. Comments left by skeptics claim the “stolen” designs are also derivative of others that came before.
Indeed, brands like Forever 21, H&M and Zara spent the early 2000s perfecting the fast-fashion business model, where variations on trends gaining traction among 20-somethings were churned out to meet demand in (what used to feel like) the breakneck pace of two to three months.
“All new fashion is influenced by other fashion. We’re all ‘fast follow,’” McKenna says. “I think the difference is that U.S. companies are very sensitive to trademark and copyright infringements, so they make sure that their designs are different enough to not be mistaken for a knockoff or to be infringing on a brand’s protected rights. There’s recourse for brands. While they may make products that are similar in design or aesthetic, I think the difference with these big Chinese companies is that they are copying these products exactly.”
Böhme confidently estimates that knockoffs have cost her company at least 200,000 sales. Given böhme’s average price point of $75, that equates to around $15 million in lost revenue.
“The problem with sites like Shein is it bypasses the retailer, and the retailer contributes a lot,” Böhme says. “We pay taxes on sales and payroll, and that’s a huge contribution to local economies. We employ around 300 people and provide them health benefits. Our stores pay rent in 17 malls. These are real contributions. When shoppers cut us out while still buying our stolen designs, they also cut out all those benefits that would come from our hiring more people and paying rent on a bigger building.”
At the same time, Böhme gets philosophical when quantifying the problem. She concedes that when it comes to China, it’s complicated.
“China is doing its thing, which is exporting manufacturing, and people here are happy to get a good price. We don’t survive without them, and they don’t survive without us,” she explains. “We need China to make the goods because America lacks the expertise, specialized machinery and fabrics they have in abundance in China. We put up with it because we need them. And as long as we want American kids to grow up to be tech whizzes and not textile workers, it’s not going to change,” Böhme says.