The Popflex Debacle - The Industry Fights Back?
Cassey Ho is a fitness blogger and fashion designer who created the Popflex brand, home to the Pirouette Skort. Her design is incredibly popular (even worn by Taylor Swift!), and with popularity comes knockoffs. Fast fashion brands like Shein have copied her design in lower quality materials to sell to consumers. As a small brand, her time is equally dedicated to fighting off dupes as it is to releasing new designs and managing her brand.
An Image of Cassie Ho, founder of Popflex.
This may sound ordinary, but it majorly changes now that Ho has achieved what is usually a rarity in the fashion world for this item - she has a patent on it. A patent is a legally granted protection by the US Government that gives the creator rights to an invention or design, as well as authority to exercise its ownership and prevent it from being copied, stolen, or used without express consent.
Ho has exercised her patent to take down brands illegally using and profiting from her design, with a steady stream of success. But what happens when the industry fights back? Gottex, a brand that retails through Nordstrom Rack, copied Pirouette Skort (down to the color!), and when Ho sent the vendor a Cease and Desist (a formal letter saying “stop”) to stop retailing her protected design, they did not back down. Instead, they sent Ho a Cease and Desist of their own, claiming that her legal right to protect her design was infringing on their right as a business to make money in the market and to stop telling them to stop. Additionally, they stated that if she did not stop, they would sue her for Tortious Interference - a civil claim in which there is wrongful third party interference between business or contractual parties. In other words, that Ho is interfering with Gottex’s ability to have a profitable business relationship and contract with Nordstrom Rack.
A scan of the Pirouette Skort Patent
At first take, or “Prima Facie”, this is a majorly baseless claim - there is no possible way Ho could be interfering wrongfully, or with the intent to disturb the business between Gottex and Nordstrom Rack out of bad faith, because she quite literally owns the design they are copying, did not consent to their use for, and has legal authority to exercise control over. Ho is not doing this to hurt them because she wants to hurt them, she is doing this because she is protecting her blood, sweat, tears of creation known in the legal world as Intellectual Property, and most importantly, her profits as a small business.
It could easily be dismissed early for not fulfilling a reasonable Prima Facie standard (Ho has obvious good faith) or for frivolity (for lack of better words, a case so obvious it’s not worth the court’s time), However, it is still entirely possible this goes to court, and the repercussions could set a brand new precedent that affect small business owners and independent designers. While unlikely, it is still important to acknowledge the power of a major retail giant like Nordstrom, who could garner favor with the court with its size. It raises the question: where does it end? As someone who has studied the fashion world, I couldn’t fathom the pain that a designer, even when they have taken legal actions and protections, could be squashed in spite of that all because of a powerhouse retailer. It’s great that Ho used the legal tools at her disposal, and it emphasizes again the importance of protecting small designers. However, this could have all been avoided through collaboration, not competition. The industry is made to support them, not clash against them. It should be reflecting in the way business is conducted.
