Duping Designers: Into the Legal Realm of Luxury Brand Duplicates
What Is a “Dupe”?
Dupes are gaining popularity amidst the new social media trend of “de-influencing,” spurred by Gen Z creators who urge their followers to think twice before spending large sums of money on the products shown on their feeds.[1] While “dupe” has traditionally been defined as a trick or deception, the trendy “dupe” of the fashion world is a less expensive duplicate of a premium or luxury product.[2] Dupes are not identical knockoffs of a competitor’s product, but rather a similar product that carries the same relative appearance.[3] Popular duplicates come in all types of merchandise; fragrances, clothing, skincare, and handbags are among the most common.[4]
Dupe culture is sweeping social media as users are attracted to the products for their appearance of luxury for a lesser price.[5] On TikTok, “#dupe” has 3.5 billion views.[6] Some believe that Gen Z is particularly drawn to dupes because of their upbringing in both the 2008 recession as well as the pandemic’s economic downturn.[7] On average, Gen Z consumers spend $104.50 on apparel each month, which is more than any other generation.[8]
While counterfeit merchandise carries the logo or other protected elements of a brand, dupes do not claim to be a product of the luxury brand. Instead, dupes are self-proclaimed cheaper versions of high-end goods.[9] Some dupes even pride themselves as being strong competitors to the brands they replicate.[10] Because dupes do not claim to be identical or fake versions of the merchandise, dupes often do not legally infringe on trademarks.[11]
In March 2023, The New York Post drew attention to websites known for selling dupes, such as DHGate and AliExpress.[12] The article noted that, although exact replicas from those two distributors come with risky legality, “there are still plenty of places to get legal and high-quality designer dupes.”[13] Dupes seem to evade any accountability from the luxury brands they rip off, but counterfeit merchandise is often the subject of lawsuits between brands and other brands or retailers.[14]
Brands Bring Litigation to Protect Their Merchandise
Unlike dupes, counterfeit merchandise claims can be, and often are, brought by luxury brands. Brands such as Louis Vuitton,[15] Gucci,[16] and Hermès[17] have each brought lawsuits against competitors who allegedly ripped off their designs. While counterfeit items create the illusion that someone is wearing a luxury brand by replicating the brand’s image, dupe creators do not aim to be the brand they replicate.[18]
Louis Vuitton
Earlier this year, Louis Vuitton sued Old National Discount Mall, a flea market in Georgia for creating a “safe haven” for counterfeit merchandise.[19] In the complaint, the French luxury house stated that the popular flea market had “turned a blind eye" to the sale of counterfeit goods that ran rampant among its vendors.[20] Louis Vuitton claims that it sent over thirty notices to the flea market to stop the sale of counterfeit marks.[21] In 2022, the Fulton County Sherriff’s Office and the U.S. Department of Homeland Security executed a search warrant on the flea market and seized nearly 3,500 counterfeit Louis Vuitton products.[22] The litigation between Louis Vuitton and the flea market is still ongoing .
Finding itself on the other end of litigation, Louis Vuitton was ordered last May to reimburse a woman who purchased a fake bag at one of its boutiques in China; Louis Vuitton claims it is unsure how the bag got into the boutique’s inventory.[23] The woman purchased a handbag and an accessory, totaling over $3,000.[24] The bag was later authenticated to be a fake, and the luxury brand was ordered to reimburse her $10,050, which was three times the price of the bag.[25]
Hermès
In 2021, an artist, Mason Rothschild, began a new project known as “MetaBirkins” in which he sold NFTs of the popular Birkin bag by the luxury brand Hermès.[26] The brand claimed that the digital bags were a violation of its trademark.[27] Hermès also claimed that Rothschild did not use the NFTs for artistic expression but rather to associate his NFTs with the Birkin’s popularity.[28] The defense countered that NFTs are protected under the First Amendment artistic expression.[29] A federal district court found that the complaint by Hermès had met the burden to show that Rothschild had caused confusion about the trademark, and the court denied defendant’s motion to dismiss.[30] Earlier this year, a jury found that the NFTs were not protected, and awarded Hermès $133,000.[31]
Adidas
In January of this year, Adidas sued Thom Browne for trademark infringement, arguing that the label was selling sportswear that featured two, three, or four strips in a way that was too similar to Adidas’s trademarked three-stripe design.[32] Thom Browne rebutted by explaining that the two brands did not have similar customers, so their consumers would not be confused.[33] The jury ruled in favor of Thom Browne, deciding that Thom Browne was not liable for damages or profits earned by its products.[34]
Gucci
Two clothing brands, Gucci and Guess, were involved in a nearly decade-long legal battle concerning Gucci’s claims that Guess was infringing the Italian luxury brand’s trademark by using a similar color logo and diamond pattern on its items.[35] Gucci sued in Australian, French, and Italian courts, as well as in U.S. federal court.[36] The federal court awarded Gucci $4.7 million,[37] while the courts in Milan and Paris sided with Guess.[38] Eventually, the two brands came to an agreement in cooperation to mutually protect both their creative designs and property.[39]
Valentino
In a rare cooperation between a luxury brand and a third-party seller, Maison Valentino and Amazon filed a joint lawsuit against an Amazon marketplace user who was selling counterfeit Garavani Rockstud shoes, one of Valentino’s most famous pieces.[40] The e-commerce company, whether purposely or unintentionally, had created a platform for dupe distributors to sell merchandise to an international consumer base.[41] Valentino and Amazon claimed that the group, Kaitlyn Pan Group, engaged in infringement of Valentino’s design.[42] As part of a settlement, the group was later removed from Amazon.[43]
Disputes Against Shein
In July 2023, three independent designers filed a suit alleging that Shein sold exact copies of their work and that this was the basis for Shein’s entire design process.[44]
However, some clothing retailers suffer the consequences of Shein’s fast fashion design process but never seek legal remedy. For MaisonCléo, a handmade-to-order family business based in France, the effects of Shein’s dupes are personal. The large dupe company can rip off their bespoke designs and never face consequences, as the founder of the label said that too much money is involved in their process, and seeking solutions to the problem would be too complicated.[45]
For Amber Boyers, the creator of Baiia Swimwear, the dupes of her products were “really disappointing, frustrating, and heartbreaking to see.”[46] Boyers was alerted by one of her customers that her distinctive patterns and designs were being sold as copycat designs on Shein.[47] Baiia Swimwear uses recycled polyester from plastic items to create their clothes.[48] Boyers worried that her brand’s image would suffer if her distinctive patterns were being poorly made by Shein.[49]
Another designer, Transformations by Tracy, had a similar experience.[50] Tracy Garcia, the owner of the brand, posts YouTube videos on how to rework old pieces into new clothes.[51] She suspects that Shein watched one of her videos in which she created a lacy shirt because the exact same design appeared on the fast fashion website despite being highly personalized to Garcia’s own brand.[52] Multiple of Garcia’s designs were duped by Shein, and within 24 hours of Garcia reaching out to Shein’s copyright team, the listings were taken down.[53] The damage had already been done; the products had already been created and sold.[54]
The biggest problem facing these small brands is that once Shein dupes their product, it can mass produce and sell it, making far more profit from the merchandise than the smaller brand can.[55] This can lead to the item being popularized by Shein, and then further duped. By the time action is taken, the item is no longer theirs to call their own.[56]
A Creative Solution to Dupe Culture
Earlier this year, a TikTok influencer with a large following began promoting dupes to her followers.[57] Ariana Vitale posted a video about a dupe for Lululemon’s Groove Super High-Rise Flare Pant; while Lululemon was charging $90 for the pants, the dupe only cost $20.[58] To get ahead of potential losses, Lululemon came up with an innovative solution. Lululemon introduced a “Dupe Swap” at one of its Los Angeles locations.[59] The Swap encouraged customers to turn in knockoff merchandise and swap it for the original Lululemon design.[60] Out of the customers who came to trade their dupe, 50% were new Lululemon customers; half of the trade-ins also came from customers who were under the age of 30.[61] The chief brand officer of Lululemon, Nikki Neuberger, explained that the Swap was Lululemon’s way of embracing the culture of dupes: “Dupes are going to happen, so let’s not fight it. Let’s have fun with it, and actually really deeply understand our consumers.”[62]
Since the Dupe Swap, Lululemon dupes have become even more popular. In early November, Teen Vogue published an article titled “20 Best Lululemon Dupes, Tested & Loved by Editors and Reviewers.”[63] Of the twenty items listed, twelve were listed as being sold on Amazon.[64] The dupe swap has been called a “genius move.”[65]
The Dupe Swap’s impact has the potential to influence other brands to address dupes in a way that connects with their consumers without having to litigate. Whether brands take dupes to court or try to reckon with them diplomatically, dupes have taken the fashion world by storm, and they are here to stay.
[1] Jordan Greene, ‘De-influencing’ is going viral. What does this mean for the future of influencers?, Today (Feb. 3, 2023, 2:02 PM), https://www.today.com/life/deinfluencing-trend-rcna68715.
[2] Russell Falcon, What is a “dupe” on TikTok? Here’s the meaning behind the trend, KTLA (June 9, 2023, 9:31 PM), https://ktla.com/entertainment/what-is-a-dupe-on-tiktok-heres-the-meaning-behind-the-trend/.
[3] Id.
[4] Id.
[5] Jeff Beer, Lululemon’s brilliant dupe strategy should be duplicated by every brand, Fast Co. (May 14, 2023), https://www.fastcompany.com/90895043/lululemon-dupes-align-tiktok-lululemondupes.
[6] Id.
[7] Lucy Maguire, Gen Z loves dupes. Is this bad news for luxury fashion brands?, Vogue Bus. (Apr. 10, 2023), https://www.voguebusiness.com/fashion/gen-z-loves-dupes-is-this-bad-news-for-luxury-fashion-brands.
[8] Beer, supra note 5.
[9] Andrew Moore-Crispin, Dupe Culture: Understanding Is The First Step to Unraveling, BENlabs (Aug. 3, 2023), https://www.benlabs.com/resources/understanding-dupe-culture-for-brands/#:~:text='Dupes'%20is%20short%20for%20duplicates,the%20cachet%20of%20iconic%20brands.
[10] Id.
[11] Id.
[12] Sophie Cannon, The best designer dupes of 2023 and where to buy them: Gucci, Cartier, N.Y. York Post (Mar. 10, 2023, 9:03 AM), https://nypost.com/article/best-designer-dupes/.
[13] Id.
[14] See Complaint, Louis Vuitton Malletier S.A.S. v. Contour 5151 ONH (N.D.Ga. 2023) (No. 23CV02818), 2023 WL 4150383; Gucci America v. Guess?, 868 F.Supp.2d 207 (S.D.N.Y. 2012); Hermès v. Rothschild, 654 F.Supp.3d 268 (S.D.N.Y. 2023).
[15] Complaint, Louis Vuitton Malletier S.A.S. v. Contour 5151 ONH (N.D.Ga. 2023) (No. 23CV02818), 2023 WL 4150383.
[16] Gucci America v. Guess?, 868 F.Supp.2d 207 (S.D.N.Y. 2012).
[17] Hermès v. Rothschild, 654 F.Supp.3d 268 (S.D.N.Y. 2023).
[18] Moore-Crispin, supra note 9.
[19] Complaint at 2, Louis Vuitton Malletier S.A.S. v. Contour 5151 ONH, (N.D.Ga. 2023) (No. 23CV02818), 2023 WL 4150383.
[20] Id.
[21] Id. at 21.
[22] Id. at 22.
[23] Tianwei Zhang, Louis Vuitton Investigates Counterfeit Selling Allegations in China, Women’s Wear Daily (May 23, 2022, 10:02 AM), https://wwd.com/business-news/legal/louis-vuitton-counterfeit-selling-allegation-china-changsha-1235186500/.
[24] Id.
[25] Id.
[26] Hermès, supra note 17, at 2.
[27] Id. at 3.
[28] Hermès v. Rothschild, 603 F.Supp.3d 98, 105 (S.D.N.Y. 2022).
[29] Id. at 6.
[30] Hermès, supra note 28, at 107.
[31] Mina Dragani, Law and Order in the Fashion World, L’Officiel (Feb. 8, 2023), https://www.lofficielusa.com/politics-culture/fashion-lawsuits-gucci-guess.
[32] Id.
[33] Id.
[34] Id.
[35] Gucci, supra note 16, at 218.
[36] Dragani, supra note 31.
[37] Id.
[38] Id.
[39] Id.
[40] Amazon and Valentino file joint lawsuit over shoe counterfeiting, Reuters (Jun. 18, 2020, 7:51 AM), https://www.reuters.com/article/us-valentino-amazon-lawsuit/amazon-and-valentino-file-joint-lawsuit-over-shoe-counterfeiting-idUSKBN23P2M3.
[41] Id.
[42] Dragani, supra note 31.
[43] Id.
[44] Ellie Violet Bramley, ”Details I made, they made” - designers hit back at Shein’s imitation game, The Guardian (Sept. 2, 2023, 11:00 AM), https://www.theguardian.com/business/2023/sep/02/details-i-made-they-made-designers-hit-back-at-sheins-imitation-game.
[45] Id.
[46] Id.
[47] Id.
[48] Id.
[49] Id.
[50] Id.
[51] Id.
[52] Id.
[53] Id.
[54] Id.
[55] Id.
[56] Id.
[57] Beer, supra note 5.
[58] Id.
[59] Matthew Stern, Lululemon Has A Bold Strategy For Dealing With Dupes, Forbes (May 25, 2023, 9:54 AM), https://www.forbes.com/sites/retailwire/2023/05/25/lululemon-has-a-bold-strategy-for-dealing-with-dupes/?sh=2d3b0b867c52.
[60] Beer, supra note 5.
[61] Id.
[62] Id.
[63] 20 Best Lululemon Dupes, Tested & Loved by Editors and Reviewers, Teen Vogue (Nov. 8, 2023), https://www.teenvogue.com/gallery/lululemon-dupes
[64] Id.
[65] Stern, supra note 62.