By Iida Kambur, Customer Success Manager for Pointer Brand Protection
The release of the new Joker movie on Friday 4 October (along with Halloween at the end of the month) means that e-commerce sites and retail stores are already busier than usual with the sale of costumes. Once just the preserve of home-made efforts, costumes have become a huge business, with one 2018 report suggesting that in the United States spending on Halloween costumes alone reached in excess of $3 billion. Due to this increased demand, it’s more important than ever for costume licensees, manufacturers, and the parent brands who own the intellectual property, to protect themselves from the problem of fakes which has emerged. Whether you’re a brand or even a parent buying for your children, here’s what you need to know about counterfeit costumes and their dangers.
Why have costumes become so popular?
There are several reasons why costumes of IP-protected characters have become so popular (and so widely infringed by counterfeiters). Part of the success for these products can be ascribed to an overall increase in spending on holidays like Halloween where costumes are an integral part of the experience. This is a trend encapsulated by the total American spend at Halloween over the past five years, where revenues increased from $6.9 billion in 2013 to $9 billion in 2018.
Additionally, however, cultural and economic developments in the media industries have also led to dramatically heightened merchandising demands. When the first San Diego Comic-Con took place in 1970, just 300 fans gathered in a hotel to enthuse about science fiction and comics. Just shy of 50 years later, the event draws hundreds of thousands of fans from around the world and has been replicated from Amsterdam to Australia, generating billions of dollars in the process. With such big business at stake it’s unsurprising that fans take their costumes more seriously now too.
Another important strand in the rise of big-selling costumes has been the global popularity of certain characters and franchises. Why have Batman and Captain America suddenly become the suits that kids in Buenos Aires and Birmingham want to own?
Mainly it’s because of the explosion of content on streaming sites, TV channels, printed formats, toys, and other media. Movie and TV studios, along with media publishing companies, are keen to exploit international audiences, and this is considered easiest through existing franchises that fans in different territories recognize. Put simply, it’s easier to land a hit with an existing character than with a new one, so this has resulted in constant repetition of well-known figures such as Spider-Man, even when the actors change periodically.
Finally, books also continue to have an important role in the growth of copyrighted costumes. UNESCO’s World Book Day (also known as Copyright Day) celebrates the act of reading by encouraging schoolchildren around the world to dress up for the day as their favorite literary characters. Whether it’s Winnie the Pooh or Where’s Waldo, costumes have become a big part of the day, leading to profits for official manufacturers but also giving rise to more counterfeits and off-brand imitators.
Are fake costumes really available?
Regular observers of IP law and counterfeit markets may already know that sadly, yes, fake costumes are a reality. In September 2019, one business in Dorset, UK, was fined $80,000 for selling costumes that infringed registered trademarks of brand holders and the licensing rights of official distributors such as Rubie’s Masquerade and Smiffys. In West Yorkshire, UK, too, Trading Standards and Police seized 3,000 counterfeit costumes ahead of World Book Day that would have been worth $100,000 had they been genuine.
What’s the IP issue and can a costume be fake?
It may seem to some that the counterfeiting of costumes is not a simple issue because although they recreate a particular look (often imaginary) they often do so without relying on the use of a company logo in the same way as a counterfeit item of clothing. However, in order to protect themselves and their intellectual property rights, creatives and media companies do customarily protect their creations and designs with trademarks that can be applied and defended.
To take one example, the badge of the fictional Ghostbusters team may just feel like part of the movie’s overall design, but it was registered with the USPTO as a distinct trademark and so can be protected. So, despite the generic nature of some of the many listings on Chinese marketplaces for “Ghostbusters costume,” those items which bear the famous ghost mark without the brand owner’s permission can and should be removed from sale.
These costumes are no different than branded items of apparel and should be treated accordingly.
Are fake costumes dangerous?
Aside from the financial and reputational damage done by these fake costumes, there is also a serious risk of physical harm. As many items are made in China and exported without conforming to necessary safety requirements, they may pose a double risk from both the materials and the packaging.
In 2018, the City of London Police’s Intellectual Property Crime Unit (PIPCU) issued an alert urging consumers to be wary of the fire hazards posed by poor quality materials. The risk of serious harm from costumes had already been publicized in 2014 when the Halloween outfit of TV presenter Claudia Winkelman’s young daughter caught fire and resulted in severe burns. That episode gave rise to a campaign in the UK by the consumer group Which?, who analyzed numerous costumes and found that although many of those available through official outlets did have a higher standard, questions were raised about some including an “unbranded” Maleficent costume available on eBay (subsequently removed from sale).
This potential threat, if nothing else, should be one that brands, consumers, and law enforcement all take seriously as this is a (perhaps unexpected) area where public safety and brand integrity meet.
What more can brands do?
It’s clear from the recent court cases that many brands do already take this issue seriously. There is always more that can be done, however, and at Pointer we specialize in maximizing online monitoring and IP enforcement through a combination of smart technology and expert legal analysis.
In addition to litigation and raids then, what other areas could brands focus on to create the most effective online enforcement strategy?
- Listing titles – Although many costumes are themselves generic products which lack enforceable trademark or copyright infringements, many unwise sellers are susceptible in the way that they list their products. Pointer’s direct relationships with e-marketplaces mean that our brand protection analysts have the connections you will need to remove these listings.
- Although most cheap Chinese imitations will arrive in clear plastic packaging, some adverts do make the mistake of showing trademarks within their images, so it pays to have software like Pointer’s to monitor all data and report back across the broad scope of listings and not just from the first image.
- Some online listing may be enforceable on the grounds that although the product itself doesn’t feature a trademark, the image used to promote it uses copyrighted material. In the case of the new Joker movie, stills are already being taken and used to promote lookalike suits, a clear case of copyright infringement.
As commerce becomes more complex and counterfeits become more convincing, brands need to act in ways that are innovative. Long investigations and civil cases against infringers can be an excellent tool in defending your rights, but online enforcement also brings the benefit of immediacy and of being a strong deterrent to sellers who have their accounts frozen or deactivated for misuse.
For a conversation on how you can protect yourself, regardless of what product you make, speak to us today at email@example.com