With the rise of “dupes”, brands are having to come up with inventive ways to protect their designs and ultimately, their brand.

Dupes are generally more affordable alternatives of luxury items, they are look-alike products, as opposed to “fakes”, as they do not tend to use other brands’ logos or monograms. Whilst the lack of imitation branding is beneficial from a brand protection perspective, by reducing the risk of association with inferior quality and look than the original, this can make it difficult for brands to enforce against the dupes. 

Why is it difficult to enforce against dupes?

Trade marks

Dupes typically do not use the trade marks of the original creator on the products themselves which would be the usual basis for a trade mark infringement. This can make enforcement more difficult. The original product will generally be referred to in connection with the dupe on social media to identify it as a cheaper alternative, but as this connection is not ostensibly being made by the manufacturer of the dupe they cannot be considered liable for infringement.

Copyright

When it comes to fashion, copyright is not likely to subsist in products unless it is regarded as a “work of artistic craftsmanship” (i.e. has artistic merit and is made in a skilful way, which does not traditionally apply to mass-produced goods), or the copyright only subsists in the decoration of a product.

Passing off

The main difficulty here is in establishing that a "misrepresentation" has occurred. The relevant public are not likely to believe the dupes are offered by or connected to the luxury brands to which they "pay homage", given they often have noticeably different price points and are actively marketed as dupes. Further, as noted above the connection between the products is often made by someone other than the manufacturer.

Registered and unregistered design rights

Design rights can be useful to protect “lines, contours, colours, shape, texture or materials of the product itself or its ornamentation”, but these may not be appropriate for all new fashion goods.

What can brands do?

Unfortunately, brands have little legal recourse when it comes to dupes and they need to come up with their own ways to protect their image and crack down on dupes.

One inventive way was demonstrated by Lululemon, who hosted a “dupe swap”. The event in America allowed owners of Lululemon leggings “dupes” to swap their dupes for the real deal. The idea being that once people tried the real leggings, they would appreciate the difference and realise that the originals cannot be truly duplicated.

From a brand protection perspective, Lululemon managed to remove some dupes from the market, demonstrated a clear level of confidence in the quality of their product whilst flagging the inferior quality of the dupes, and garnered positive press. Unfortunately, this one-off event has not eliminated the dupe problem faced by Lululemon and many other brands, but it is a start and a very creative one at that.