The story is so commonplace now that it’s become a fashion cliché: whether it’s about an independent creator with an Etsy shop or an iconic brand employing a massive team of creatives, eventually a link becomes one Shared item for sale at Shein via email or DM or text. “Hey” could be the message from a confused colleague or customer. “Isn’t that your design?”
Cookies SF, a popular clothing brand founded in 2011 by the co-founder of billionaire American cannabis brand Cookies, filed a lawsuit against Shein on Nov. 2 accusing the Chinese fast-fashion juggernaut — the retailer had $15.7 billion in sales in 2021 US Dollars – from trademark infringement and counterfeiting. It’s a sweatshirt that was once offered for sale on Shein’s website and, according to Cookies SF, accurately reproduces the trademarked Cookies mark: the distinctive, repeating logo seen on almost all of its clothing.
Cookies co-founder Gilbert Milam Jr., known by his rapper name Berner, could not be reached for comment.
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Cookies SF is just the latest in a long list of irate companies accusing Shein of ripping off, manufacturing and selling their original ideas at an astonishing rate, but a counterfeiting charge goes beyond an allegation of trademark infringement or intellectual property theft: while Both trademark infringement and counterfeiting describe unauthorized use, a counterfeit being defined as “a false mark that is identical to or substantially indistinguishable from a registered mark”.
In other words, trademark infringement can be unintentional, but counterfeiting is inherently deceptive. Streetwear brand Stüssy also sued Shein in March for counterfeiting.
According to that Wall Street Journal, as of 2020, Shein has been named as a defendant in over 50 U.S. federal lawsuits alleging the company of trademark or copyright infringement. High-profile plaintiffs include Levi Strauss and Ralph Lauren, the latter of whom accused Shein of selling items with a logo “confusingly similar” to his classic polo player trademark; lesser-known creatives like Bailey Prado, who accused the retailer of copying their handmade crochet designs, say they’ve also been ripped off.
“I was expecting to find just one of my designs copied,” Prado told Dazed last year. “When I saw the whole collection and started to recognize each piece because I knew where it came from, I was shocked and felt like it wasn’t real. I was just shocked.”
Maggie Stephenson, a freelance artist, sued Shein for $100 million this summer over an allegedly stolen design. Stephenson could not be reached for comment.
Whether you’re a small business owner or a billionaire brand, Shein’s sophisticated trend-finding algorithm can find and target any design online that customers are likely to respond to, analysts say.
Many disputes between designers and Shein have been settled for undisclosed amounts, and not a single infringement lawsuit against Shein has ever made it to court.
“Our client is going to take this case to court and force Shein to face a jury for the first time, and there is no amount that can change that,” said attorney Jeff Gluck, an attorney with a reputation for serving a number of streetwear Representing brands that are now doing so includes Cookies SF, The Daily Beast said. The brand “seeks full enforcement of its rights, including but not limited to maximum damages for alleged willful counterfeiting,” Gluck said.
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“Shein’s notorious and well-documented business model relies on willful violations of the rights and interests of independent artists and designers,” according to Cookies SF’s lawsuit.
“Shein takes all injury claims seriously,” the retailer told The Daily Beast in a statement. “It is not our intention to infringe on anyone’s valid intellectual property and it is not our business model to do so. Shein suppliers are required to comply with company policies and certify that their products do not infringe the intellectual property of others. We continue to invest in and improve our product evaluation process.”
“Cookies doesn’t really have a huge financial interest in pursuing a claim through to judgment,” Douglas Hand, a partner at Hand Baldachin & Associates and an associate professor of fashion law at NYU, told The Daily Beast.
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“I would expect Cookies to seek, and perhaps receive, a six-figure settlement in connection with this dispute,” Hand said.
Even if the Cookies dispute makes it to court, there is almost certainly no individual lawsuit that could bring down Shein or significantly transform the company, Susan Scafidi, the academic director of the Fashion Law Institute at Fordham University, told The Daily Beast.
“Shein is regularly accused of copying designs, but what they’ve really copied is an entire business model — the fast fashion business model of a few decades ago,” Scafidi said. “These lawsuits are being treated simply as business expenses. It takes a long time to negotiate a license to use someone else’s work in advance, so wait for the lawsuit and pay afterwards. It is essentially an involuntary license.”
Read more at The Daily Beast.
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