The most active users on social media, especially on Instagram and Tik Tok, are certainly aware of the so-called “dupe culture”, i.e. the new trend of (almost compulsively) buying cheap dupes, promoted through branded content and hashtags.
But… what exactly is a dupe? And what issues does it hide?
A dupe is a cheaper imitation of high-end products which are known and appreciated by the public. a dupe is most frequently a beauty or clothing item, but dupes can be made for any type of product.
Despite a great variety of products, there is a kind of uniformity with regard to the recipients of such content: young consumers – more active on social networks, more exposed to trends, and at the same time lacking great financial resources.
Therefore, not only influencers, but also average users are likely to recommend, suggest, present, share and test dupes, both unaware that they are at times promoting actual counterfeit items (commonly referred to as “designer fakes”).
The question therefore arises as to whether dupe is a synonym for ‘counterfeit’ or whether there are limits within which it can be deemed lawful.
To answer this question, we can address, conversely, the extension of the protection granted to the shape or outward appearance of products, which is ultimately what induces so many consumers to buy dupes – mainly through an analysis of designs, as well as trademarks and copyright.
I. Designs: informed user vs. “conscious consumer”
Designs allow for the protection of the outward appearance of a product that is new and has individual character, it being either three-dimensional – think of the shape or structure of a bag, a shoe – or bi-dimensional – the line, materials, patterns.
While the registration of a design grants a 5 year long protection (renewable up to a maximum of 25), unregistered designs are not left unprotected, as the law affords them a protection for 3 years from the first disclosure in a specialized environment, such as a fashion show or a publication in a trade magazine.
However, it must be emphasized that the differences between a registered and unregistered design can be appreciated under a number of aspects, other than that of a mere temporal extension.
First and foremost, while the registered design enjoys a presumption of validity and knowability, the unregistered one does not. Therefore, the owner may be asked to prove individual character and novelty and, above all, to prove the awareness of the disclosed design by the alleged infringer (as to exclude any fortuitous encounter), thus making any action to protect their right somewhat more difficult.
For these reasons, although the initial intention of the European legislator was to align the protection of the two rights, jurisprudence[1] and case law have long held that the unregistered design can only be protected against intentional and deliberate copying – cases where there is an “absolute overlap of shapes”.[2]
Regardless of any registration, the requirements of novelty and individual character will always be assessed from the point of view of the so-called informed user, i.e. a fictional person at the crossroads between the average consumer and the professional operator.
The informed user would indeed be able to grasp the so-called “overall impression” produced by the design at stake, while assesing its “individual character” – and compare such an impression with the ones produced by all the previously disclosed designs. This comparison should be carried out with a peculiar attention to the designer’s degree of freedom in the creative process.
This degree of freedom may be wider or narrower depending on the type of industry or the particular technical constraints imposed by the nature of the product. Think of the countless number of jeans with similar characteristics that fill the apparel sector, or the fact that they must all feature a series of elements that are common to any pair of trousers.
A narrower margin of freedom means that, in the eyes of the informed user, fewer differences between the designs will enable the new one to give off a different overall impressioncompared to the previous ones and thus be afforded protection; if this is true, then equally “minimal” differences will be sufficient, before the court, to exclude infringement of the same design by third parties.
However, this parallelism between the grounds of validity of a design and the assessment of possible infringements carries an inner contradiction when it comes to practice.
In fact, from the point of view of validity, the criterion of the informed user certainly responds to general needs: the differences which are clear to an informed user may go totally unnoticed by a less experienced person, less likely to pay that much attention toa certain placement of the zips or the type of studs placed on a jacket, for instance.
To adopt the average consumer’s point of view, therefore, would excessively narrow the threshold to access protection, especially for those wishing to create in sectors that have now almost reached a point of saturation.
On the other hand, one may wonder whether the consumer’s level of attention should be relevant in court proceedings. Indeed, it is reasonable to assume that a consumer will rarely be able to make a direct comparison between the “high-end” product and its dupe in everyday life.
Thus, the general impression likely perceived by average consumers when window-shopping – which ultimately leads them to buy a dupe because of its similarity with the “designer item” – is not the same impression that should strike the judge in the infringement proceedings, since he would have to adopt the point of view of the informed user.
Thus, if it were accepted that the purchasing public is largely made up of consumers, albeit averagely circumspect ones, this asymmetry in viewpoints would reduce the perimeter of the design owner’s right.
The dupe would in fact appear lawful in the eyes of the informed user (granted the ability to perfectly tell the differences with “the original”), and at the same time the dupe would succeed in generating that mental connection with the imitated product or, in some cases, even blurring the line between the two.
II. Alternative Protections: Encouraging Creation?
Despite their limitations, due to the above-mentioned features, designs (both registered and unregistered) have nonetheless proven to be a valuable tool for keeping up with the speed of fashion – a speed which is not only endured backstage at fashion shows but rather dictated by actual commercial needs.
However, the dupe contributes to this fashion frenzy: in fact, the overwhelming presence of ‘copies’ and alternatives of all kinds makes the innovative product appear as old, boring and ultimately replaceable – just shortly after being put on the market.
We were used to the idea of a piece clothing being labeled as vintage after twenty years, but in reality, manufacturers nowadays take advantage of an endless cycle of micro-trends, i.e. short-lived and niche items, in order to feed the public’s hunger for novelty and be sure to secure even the smallest portion of consumers.
In this picture of hyper-consumerism, the dupe is the junction point of a snake biting its own tail: at the same time a cause and a consequence of the weakening of values such as refinement, creativity, quality. These new forms of large-scale ‘copying’ have now become, in some cases, a real business model – going far beyond the healthy imitation that has distinguished the fashion industry for years.
For these reasons, the discipline examined so far may prove insufficient to really protect those pieces that embody the essence of one’s brand – and which, as such, would justify a stronger form of monopoly on the outward appearance of a product.
The shape-trademarks and copyright thus serve these purposes, granting the designer a more extensive protection, first and foremost on a temporal level: the former is in fact potentially renewable without any limits, the latter grants economic rights destined to last for 70 years after the author’s death, together with imprescriptible moral rights.
Moreover, in the case of shape marks, the assessment of infringement is carried out through the average consumer’s point of view, – which, as opposed to designs, makes it easier to prove the likelihood of confusion for the reasons set out above; a fortiori in the case of an original product subject to copyright, the likelihood of confusion is not relevant either , as only the external and original characteristics are taken into account when it comes to establish the lawfulness of a reproduction.[3]
It should be noted to achieve such a wide protection, one must overcome a series of obstacles to trademark registrability and recognition of copyright, which are rendered necessaryin light of how atypical it is for a consumer to deduce the entrepreneurial origin of a product in the absence of any graphic signs or to appreciate its artistic value as a result of mass production.
In conclusion, considering this range of (cumulative) strategies, it is worth noting that, although the word dupe retains in its etymology a certain reference to deception[4], ultimately it is not legally speaking, an actual synonym for ‘counterfeit’, it may just as well qualify as a mere form of flattery or harmless imitation.
While such a phenomenon may positively boost the accessibility to a wide range of alternatives at a reasonable price in the short term, on the other hand, it is also likely to trigger a race for competitiveness and to level down quality and innovativeness. As a matter of fact this would negatively affect consumers in the long run.
When experiencing an actual re-branding of wearing cheap lookalikes, consumer education must go hand-in-hand with an appropriate protection strategy designed through intellectual property instruments. Hopefully, these instruments will prove sufficient to curb corporate greediness and at the same time to push young designers to create more.
[1] Proprietà industriale e intellettuale. Manuale teorico-pratico, a cura di Riccardo Perotti, Pacini Giuridica, 2021, Cap. VII.
[2] Court of Milan, decision n. 6397/2015 (MAX MARA – LIU JO)
[3] Cass. N. 9854/2012;
[4] dupe / d(y)oōp/• v. [tr.] “deceive; trick”, or “short for duplicate, esp. in photography” – da The Oxford Pocket Dictionary of Current English