Will “dupe culture” be a temporary trend? Fordham Law Professor Susan Scafidi, founder and director of the Fashion Law Institute, weighs in on the movement and shares her expert opinion with Vogue Business on how brands can deal with its legal and cultural ramifications.
“The diminutive ‘dupe’ has replaced more negative terms like copycat, replica, knock-off and counterfeit,” says Susan Scafidi, founder and director of the Fashion Law Institute at Fordham Law School. “Not coincidentally, some younger consumers in particular have come to view dupes as a sign of shopping savvy, indicating that the buyer has the sartorial knowledge to recognise the original but the financial cleverness to buy the copy instead.”
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What’s legal?
Generally, dupes are taken to be alternatives — not a direct copy of an existing product. But the definition of dupes is blurry, which means so is the legality, Scafidi of the Fashion Law Institute cautions. Counterfeit is a legal term for the unauthorised — and thus illegal — use of a trademark. Dupes are not defined by law, she notes, which means they may or may not be counterfeits.
“When dupes don’t use the trademarked name or logo of the genuine item, they’re less likely to be considered counterfeits,” she says. But some product designs are so iconic (Scafidi points to the Hermès Birkin, Christian Louboutin’s red soles and the combined elements of Converse Chuck Taylor sneakers) that the design itself can serve as a trademark, even without the name or the logo. “In those cases, dupes are likely to be counterfeits and subject to legal action,” she explains.
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The big grey area makes it difficult for brands to prevail on the legal front, Scafidi says. “Compared with intellectual property protection for fashion designs in other jurisdictions, including Europe, US law feels like one big loophole,” she continues. “Fashion design protection in the US tends to be the exception, not the rule.” Brands tend to rely on trademark law to protect their labels and logos, Scafidi says, but worries that dupe culture is now eroding trademark protection. “Putting someone else’s trademark on a product is illegal, but describing a dupe as similar to a name-brand product is often permitted, so long as the consumer isn’t likely to be confused.”
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At the end of the day, lawsuits are expensive, and even big brands’ legal budgets are limited, Scafidi flags — especially when there’s no guarantee litigation will be successful. In December, Benefit Cosmetics unsuccessfully attempted to sue Elf Cosmetics for a dupe of the former’s Roller Lash mascara; the judge ruled that Elf’s use of a different component and packaging was distinct enough as to not confuse customers.
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Lululemon is known for its creative efforts to combat its many dupes. For years, the brand has posted side-by-sides of its leggings and fakes (at a time when most brands refused to acknowledge dupes, Scafidi flags). In May 2023, Lululemon hosted a ‘dupe swap’ in Los Angeles, promising free Lululemon leggings for consumers who brought in dupes of the brand’s Align leggings. And late last year, the brand filed an application to trademark ‘Lululemon dupe’.
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How Lululemon will apply the mark is unclear, as the filing is an “intent to use” registration, Scafidi adds. “The trademark filing is an additional tool to complement the robust brand protection programme we have in place,” said a Lululemon spokesperson.
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All said, even as brands work to shift their products and messaging, dupe culture’s now-iron grip will be tough to shake. “Dupe culture may turn out to be a temporary trend, as brands harness both limited legal strategies and expansive capacity for consumer engagement to turn the tide,” Scafidi says. “But it’s going to be a while before we’re done with dupes.”
Read “The fashion and beauty executive’s guide to dupes” in Vogue Business.