Dupe Culture: Measuring The Threat For Luxury Brands

While “dupes” (replica or lookalike products) are primarily viewed as a legal threat, the constant stream of comparisons and recommendations on social media can also boost the visibility of the copied product. But this doesn't detract from the brand protection challenges facing luxury products, argues Megan Creemers. 

A Hermès Birkin bag, the Oran sandal or a Maison Francis Kurkdjian perfume... these days, there is a cheaper alternative for virtually every iconic luxury product. On TikTok, Instagram and YouTube, these products are widely showcased as "dupes": affordable alternatives that promise the same look or experience as the original. 

While dupes have been traditionally viewed as a legal threat, there is an argument that their impact is more nuanced. Given the constant stream of comparisons and recommendations on social media, dupes can also boost the visibility of original products, raising the question of whether dupes inadvertently serve as a form of promotion for luxury brand owners. 

Can dupes reinforce exclusivity? 

Consumers know that a dupe is not the same as the original. Consequently, the original product remains the ultimate symbol of authenticity, scarcity and prestige. The more alternatives that appear, the more the original is cemented as the benchmark against which everything else is measured. 

However, this does not mean that a dupe is allowed. Whether a dupe is legally permissible depends on the design, the signs used, the way the product is presented and the applicable IP rights, among other things. 

When does visibility turn into brand dilution? 

Their existence can also undermine and damage luxury brand owners in other ways. There is a tipping point at which constant references to a brand can undermine its exclusivity. When consumers increasingly associate a particular design, specific packaging or even an entire product category with a range of cheaper alternatives, the brand's distinctiveness diminishes (known as brand dilution).

Well-known brands are particularly susceptible to this risk. Their value lies not only in the origin of the products but also in the exclusivity surrounding the brand. If the market is flooded with strikingly similar products, that exclusive position can gradually be eroded. 

Brand owners must therefore monitor and guard against the normalisation of imitations or a loss of distinctiveness. Not every dupe warrants legal action, yet inaction can ultimately jeopardise a brand's exclusivity and distinctive power. 

Why are dupes often treated differently than counterfeits? 

It is striking that many luxury brands take aggressive action against counterfeit products, while appearing relatively restrained in their response to dupes. 

There is a clear explanation for this difference. Counterfeit products typically use the same brand name, logo or other signs protected by IP rights. This creates a risk that consumers might believe they are purchasing the original product, thereby directly undermining the brand's core function as an indicator of origin. 

The situation has been different with dupes. Consumers generally know that the product does not originate from the luxury brand. The appeal of a dupe lies precisely in the fact that it resembles the original without claiming to be it. Moreover, legal action does not always guarantee a specific outcome in such cases. Taking action against "dupes" can also generate unwanted publicity and, in some cases, boost the popularity of the alternative in question. For some brand owners, restraint is therefore a deliberate strategic choice. 

However, this is beginning to change, not least with the rise of “ultra dupes”, products sold in a slightly altered form but allowing the buyer to modify the goods on arrival to look like a luxury brand's trademark. 

What does this mean for trademark law? 

Traditionally, trademark law has focused heavily on preventing confusion regarding the commercial origin of products and services. Consumers need to be able to trust that a trademark guarantees the origin of a product or service. 

However, with many modern dupes, such confusion is entirely absent. Consumers are aware that they are purchasing an alternative. In fact, the price difference is sometimes the explicit reason for choosing the dupe. However, this is undesirable for trademark owners because exclusivity and brand value is affected. Luxury brands invest significantly in building an exclusive image and naturally want to protect that image and investment. 

In the EU, trademarks “with reputation” enjoy a wider form of protection that goes beyond the prevention of confusion. Even in the absence of likelihood of confusion, it may be possible for brand owners to enforce their rights against third parties that take unfair advantage of, or are detrimental to, the distinctive character or the repute of the protected trademark. 

If the design of a product or packaging is also copied, design rights or copyright may also be relevant. The options available to a trademark owner always depend on the specific circumstances. 

Is current trademark law ready for the "dupe" economy? 

The rise of "dupe culture" demonstrates that the traditional focus on the likelihood of confusion does not always align with modern market realities. Dupes can circumvent the traditional arguments of deception, since consumers know they are not buying the original. 

As a result, the legal debate is shifting increasingly from confusion to reputation, investment, and brand value. When is a company permitted to capitalise on the allure of a well-known brand? And when is that allure exploited to such an extent that intervention is justified? 

That assessment is not always black and white. In addition to legal factors, commercial considerations, the position of the brand and the possible impact of action on brand value and reputation also play a role. 

The importance of including dupes in your brand protection strategy 

As the trade in dupes continues to evolve, it’s vital to monitor and enforce infringing activity as part of your online brand protection strategy.

By ensuring you have relevant trademark, design and other IP registrations in place, and are actively monitoring the market for lookalikes, dupes, and other potential breaches on digital and offline channels, you can more effectively determine when and where to take action.