Imitation, Counterfeits, Knockoffs and My Rothy’s Style Aldi Shoes

Anyone who knows me knows that I love a good bargain so I love Aldi. It is the bargain hunter’s delight. When I lived in Ireland, Lidl, a grocery store similar to Aldi, saved me and the little change in my bank account, but that’s a story for another day. So, back to Aldi. When I go shopping at Aldi, I like to visit what I just found out some people refer to as the Aisle of Shame. This is where you find special goodies. The get-it-or-miss-it aisle. This aisle has seasonal goods that seldom make a comeback. You’ll find everything from clothes and shoes, to kitchenware and garden items. When it comes to items where size matters like shoes and clothing, time is of the essence because if you miss an item in your size you’re all out of luck. 

Lidl has the same aisle for the same purpose, and I still have some of the things I picked up there in my closet. In fact, my favourite bathrobe is from Lidl. It’s five years old and I have to say it’s the cosiest bathrobe I have ever owned. Again, I digress.

So, for a couple of years now, Rothy’s have been on my wish list. I’m trying to do my best for the environment. I take my shopping bags to the grocery store – Ireland and the UK have taught me well, I reuse food containers, I recycle… you know, the whole Reduce, Reuse, Recycle mantra. I’m all about it, or at least, I try to be. A pair of Rothy’s on your feet says fashionable and environmentally conscious. But at a hundred dollars and some for a pair, the item is not high on my wish list, sadly.

So, a couple of weeks ago, there I was strolling through Aldi when I came upon a pair of Rothy’s lookalikes! Just two pairs left – one in leopard print and the other in black. My eyes flashed wide open. Like I mentioned before, with clothing and shoes, time is of the essence. The fact that there were only two pairs left meant that I had almost missed the boat on this one. But, lady luck was on my side. The leopard print was a US size 7 and the black was a US size 8. I took the black, and happily paid US$9.99 for it. Let’s call it my intro to sustainable footwear. I’m starting small. One day I might get to Rothy’s status and join the likes of Meghan Markle. 

So what has all this got to do with imitation, counterfeits and knockoffs, and why is that even important? Well, let me start with definitions.

Imitation

Imitation they say is the greatest form of flattery. But in the world of business and intellectual property, imitation is not always appreciated. Aldi UK was in the news in April when Marks and Spencer (M&S) deemed that Aldi’s Caterpillar Cake, Cuthbert, infringed on the intellectual property rights of their Caterpillar Cake, Colin, and took action against Aldi. And although we all had fun on social media picking sides to #SaveColin or #FreeCuthbert, the fact of the matter is that M&S has intellectual property rights to protect in Colin, and Aldi’s Cuthbert is so similar to Colin that it just may have crossed the line from imitation to infringement. Merriam-Webster defines imitation like so:

Something produced as a copy: COUNTERFEIT (made in imitation of something else with intent to deceive)

Resembling something else that is usually genuine and of better quality: not real

In business, imitation can easily cross the line from simple copying for inspiration to serious copying that equates to infringement if the copied product is protected by intellectual property rights.

Knockoffs

A knockoff is the same as a counterfeit. The product is so closely similar to or the same as the original, complete with logos and other brand identifiers, and the intention is to deceive the consumer into believing that they are purchasing the “real” thing. If you’re in the market for knockoffs, to fake it till you make it, Canal Street in New York would be your destination (this is just for informational purposes, not an encouragement to patronize and support the criminal world or counterfeit goods).

IP Protection in the Fashion Industry

In fashion, depending on where the creator is, copyright law may be useless. Copyright law generally excludes artistic expression of things that fall under the class of ‘useful articles”. Functional materials do not enjoy the same protection no matter how creative their authors have been. The expression of creativity in fashion design is not separable from the useful function of clothes. At the end of the day, the off-shoulder dress, asymmetric-cut skirt, cowl-neck dress, all serve one purpose, to cover our nakedness. Kitten heels are kitten heels no matter which design house is pushing them out, and they protect our feet from the elements just like any other pair of shoes. While the designer’s sketch for the garment or accessory or shoes may be protected by copyright law, the actual garment does not enjoy the same protection. 

Many national copyright laws are influenced by the provisions of the Berne Convention. And although some people suggest that fashion design is implied in the Convention, it does not include fashion design in the list of what is considered “literary or artistic works”. The World Intellectual Property Organisation (WIPO) has not expanded the interpretation of the Berne Convention to include fashion design. So unless you are in France, for example, where their copyright law protects any original work expressed in ANY form, you’ll have to turn elsewhere than copyright for protection if you’re in the fashion industry.

The fashion industry finds protection in other areas of intellectual property including trademark, trade dress (aka get up), patent and design. I’ve talked about trademarks here, and patents and design here. Trade dress or get up refers to those features of a good that are associated with a particular fashion brand through marketing or time in the market. It could be the shape or colour of the good that has received recognition in the market as being a product from a particular source. 

While patents and design offer protection for some aspects of fashion, it is not the most practical option. Anyone who has tried to get a patent can attest that the process can be lengthy and expensive. Digital technology has made it possible for knockoffs to reach the market much faster than the original so that while original creators are battling to secure IP protection, the copycats would have flooded the market with their copies and reaped the benefits of the design. Fashion these days moves very fast and IP regulations vary by jurisdiction, which is why there is increasing advocacy for an IP regime specifically designed for the fashion industry.

Back to My Rothy’s lookalike 

Aldi, Lidl and other get-the-look-for-less outlets skate around these technicalities to offer consumers the looks we love from the brands we love but cannot afford. My shoes are from Aldi’s Serra brand. No trademark infringement there. They look like Rothy’s but they are not. There is no intention by Aldi to deceive me or any other consumer into believing that the shoes are from or by Rothy’s. Did I pick the shoes up with a knowing wink to Aldi because they know, and I know, that if I had Rothy’s on my wish list I would be tempted to snatch these lookalikes off their shelves? For sure!While we may be clear on the trademark side, the patent side is questionable. Rothy’s holds patents that cover the design and manufacturing process for their shoes. I’m not going to investigate which of those patents are still valid or which ones Aldi infringed upon, if any. I’m just going to be in these streets in my Aldi Serra shoes this Summer, although I may need to get some insoles because my feet keep slipping out of them.