What to do when your IP rights don't give you the protection you need?

It is not unusual to see Instagram Reels from independent designers lamenting about their designs having been copied, which can be deeply frustrating to see when, oftentimes, they have taken no preemptive action to protect themselves.

However, Sophia Wesbster's recent video discussing cheap dupes of her Paloma Sandal struck a different tone, providing a composed comparison of the shoes, and a clear and calm rationale as to why a consumer should choose the genuine article despite the difference in price point. The video left me wondering — was this really just the musings of a business owner, or was this an IP strategy at play?

Sophia's comparison of the products starts with a discussion of the differences between the shoes. As a patent attorney, this surprised me, because in a potential infringement situation I would always be trying to identify the ways in which the products are the same. However, within the context of educating the consumer, it does make sense to point out the differences and say ‘hey, look, this is what you won’t be getting if you buy the dupe'.

Later in the video, Sophia does mention her registered IP and flashes up an image of her UK registered trade mark for a butterfly shape.

For my own curiosity, I had a look at the UK Designs Register and found that Sophia Webster Limited is ALSO the owner of a number of UK registered designs, but none seem to be for the shoe (in particular the butterfly wedge heel design) in question.

This led me to wonder whether unregistered design right had been considered. From the list of differences between the products given, my guess is that it had, but the advice had been that it might be a hard case to make to meet the “exactly or substantially the same” threshold for infringement based on the differences between the shoes.

Upon realising that their IP rights do not provide the desired protection in a given situation, this is when it might be tempting to take to the internet to air your grievances. But, it is evident that Sophia Webster Limited is an IP savvy company, so was this clear and composed video part of their IP strategy? If not, it should be!

When there is little hope of successful enforcement, instead speak directly to the consumer. Be the bigger person and present your case, pointing out the differences in product quality and the foles of fast fashion dupes.

At Marks & Clerk we have a dedicated Fashion and Retail team, made up of experts in trade marks, patents and designs, who can not only advise on protection and enforcement but on broader IP strategy to suit your business. If you are looking for advice, then please do not hesitate to get in touch.