A copycat is a free audit of your intellectual property. Everything it managed to reproduce is something you did not own, or did not protect well enough. Everything it had to leave out is where your real advantage sits. Most brand protection strategies start from the first list. The second list is where the value is.
An article in Harvard Business Review by Graham Kenny and Ganna Pogrebna makes the business case with three examples. Lululemon invited owners of imitation leggings to swap them for the real thing, and about half of the thousand people who turned up were new customers. Swatch and Omega built their own low-priced version of the much-copied Speedmaster, and sales of the US$7,000 original rose by more than half. Cluely, an AI startup, saw a free open-source clone of its product within weeks, and moved to enterprise features a lone developer could not reproduce. The authors’ instruction is to “treat imitation as a mirror”.
What the copy could not carry
Read those cases as an IP owner and one pattern appears. What the imitator could not copy was a protected asset.
– The dupe leggings copied the cut and the feel of the fabric. They could not use the Lululemon name. Lululemon has since registered DUPE SWAP and LULULEMON DUPE as trade marks in the United States, so the word the market uses to find a copy now points back to the original. Where a lookalike crosses into its protected designs, it sues, as it did against Costco last year.
– The homage watches copied a design from 1957, long past any registered protection. They could not put Omega on the dial. Swatch sold authenticity, which is a trade mark, for about US$260. When the Monopoly Ends, Your Shape Has to Stand on Its Own shows what happens when the shape has to carry that weight alone.
– The clone copied a software feature in days. It could not copy customer contracts, security controls, integrations or accumulated data. Those are trade secrets, contracts and sometimes patents, the question asked in When Anyone Can Build It in an Afternoon, What’s Left to Own?.
The authors propose an audit: list what was copied and what was not. The IP version adds a third column. For each item the copy could not carry, name the right that protects it and ask whether it is registered, documented and enforceable. A reputation in a product’s look that was never registered as a design or a trade mark is passing-off evidence waiting to be assembled. A process that lives in engineers’ heads is not a trade secret.
Two moves follow. Where the copy reveals a segment the premium product never served, serve it under your own mark, as Swatch did, and the imitator loses its one advantage. That is the question Butterfly Effect and IP Mimicry raised in 2011. And where the thing copied cannot be protected at all, stop spending on its defence and move the investment to what remains hard to reproduce.
Before the next launch, ask what a competent copycat would take, and whether what is left is something you can enforce. If it is not, the copycat’s list is your filing list, and your brand protection strategy starts there.
Read the article: How Copycats Can Reveal Your Competitive Advantage, Graham Kenny and Ganna Pogrebna, Harvard Business Review.