The rise of dupe culture: impact on brands and IP strategy

When horizon scanning, businesses should review their portfolio and anticipate which intellectual assets are most vulnerable to imitation, and which could therefore benefit from enhanced protection, and in which territories. In addition to relying upon appropriate IP protection, this can be enhanced by adopting a layered approach. This could include several complementary intellectual property rights (for example, securing both trade mark and design protection), or obtaining several trade mark registrations for standalone and combined elements including names, logos and colours. For example, McVitie's has applied for distinct trade marks for the packaging of its chocolate digestive biscuits, both with and without its brand logo and text. 

Aside from a varied IP portfolio, strategic IP applications are also potentially valuable tools to leverage against dupes. Lululemon has recently filed an application for "LULULEMON DUPE" in the United States and Benelux for class 35 (which covers terms related to advertising), which it appears will be used to intercept the sale and advertisement of dupes. Lululemon’s application reflects an innovative and multi-jurisdictional strategy to tackle dupes through trade mark protection.  

As part of a wider IP strategy, brands should also consider targeted enforcement, pursuing those whose behaviour is especially problematic. This may include bringing proceedings in relation to products which have attained considerable publicity on social media. For example, Longchamp has launched legal proceedings against Dunnes Stores in Ireland for selling a dupe of its Le Pliage tote bag, which was widely discussed on Instagram, TikTok and in the mainstream media. Dupe products which receive notable publicity may risk opening the floodgates to further dupes in the future, particularly if brands are perceived as having a relaxed enforcement strategy and consumers have proven their interest through engagement online.   

A key challenge under trade mark law, however, is that of demonstrating a likelihood of confusion among consumers. In a US dispute between Benefit Cosmetics and e.l.f (in which Benefit alleged that e.l.f had duped its Roller Lash mascara), e.l.f relied upon the fact that the very success of dupes "relies on consumers distinguishing between the expensive inspiration and the product at hand".  

However, it is anticipated that there may be a growth of litigation specifically relying on causes of action which focus on unfair conduct by dupe producers. For example, trade mark owners may bring proceedings on the basis that a dupe has taken 'unfair advantage' of a trade mark with a reputation, without any need for establishing confusion. Earlier this year, the Court of Appeal ruled that Aldi infringed the packaging trade mark of Thatchers’ cloudy lemon cider, by taking unfair advantage of the mark’s reputation when it launched its own competing lookalike lemon cider product. The court concluded that Aldi's lack of intention to deceive or confuse consumers was irrelevant, and the similarity of Aldi’s product and packaging was clearly intended to remind consumers of Thatchers’ product, taking advantage of its reputation. Similarly, in the last few months, Lululemon has brought proceedings in the US against Costco Wholesale on the basis of unfair competition, alleging that Costco has unlawfully traded upon its reputation and goodwill. Given dupes inherently ride on the coattails of successful brands, such claims may be increasingly important.  

To the extent that dupe producers draw analogies between their product and the genuine item, the promotion of dupes may also raise questions surrounding misleading advertising. In L’Oréal v Bellure, a landmark decision on advertising of imitative perfumes, the Court of Appeal ruled that the unauthorised use of trade marks in comparison lists amounted to taking unfair advantage of a trade mark, constituting unlawful comparative advertising and trade mark infringement. The rise of dupe culture raises questions surrounding how the law should approach the use of dupe terminology in advertising, complicated by the fact that many dupe producers do not brand themselves as such, and rely on influencers to do this for them. 

Brands may also consider taking action to remove infringing content from third party platforms, for example by submitting notice and take down requests. UK Government Guidance on Protecting Intellectual Property Rights on E-Commerce Stores provides helpful insights to brand owners on the suite of tools developed by e-commerce platforms to report and remove infringing content. 

Brands may also consider taking direct legal action against platforms, where appropriate. Third party platforms typically rely on notice and takedown mechanisms and a hosting safe harbour defence to avoid liability (under which hosting providers are exempt from liability for infringing goods if they did not know they hosted illegal content or information, and they acted expeditiously to remove or disable access to it once aware). However, platforms are required to have no actual or constructive knowledge to benefit from the safe harbour. With platforms becoming increasingly active in selecting, manging and promoting content, reliance on this exemption may become more difficult.  

Generally, a greater onus is being placed on online platforms to reduce infringing content on their platforms. For example, the EU’s Digital Services Act imposes obligations on intermediaries to implement mechanisms which allow users to flag illegal content and for platforms to cooperate with ‘trusted flaggers’ to remove such content. Platforms are leveraging innovation and AI to assist with these obligations, particularly in monitoring and removing infringing content. In its 2024 Brand Protection Report, for example, Amazon discusses its use of advanced machine learning technology to scan keywords, text and logos which are identical or similar to registered trade marks or copyrighted works. Amazon also leverages multimodal large language models to improve its infringement detection, by reviewing and considering data holistically (as opposed to reviewing individual aspects of a product listing, such as visual or textual attributes). 

Many brands have sought to engage with dupe culture as an element of their response, whether through marketing or commentary. Brands such as Olaplex and Kanzen have engaged in marketing campaigns intended to highlight issues surrounding dupe culture. For example, Olaplex launched a haircare product Oladupé, which was promoted by influencers online, and which directed consumers to purchase the genuine product on Olaplex’s website. British skincare brand Kanzen created a self-imitative dupe which featured the genuine product in lookalike packaging, sold at a tenth of the cost. Kanzen’s dupe product was widely discussed on social media, leading to it being resold at higher prices than the original. Kanzen’s campaign highlights the broader themes surrounding dupe culture, and the extent to which it is driven by social media engagement. Similarly, Lululemon hosted an event at which participants were invited to swap dupes in exchange for genuine leggings, to emphasise their quality and irreplaceability. 

More recently, Estée Lauder has released a campaign with actress Kristen Bell for its Advanced Night Repair Serum, which nods to dupe culture by claiming the brand has successfully 'duped beauty sleep'. Such campaigns reflect the perception among many brands that it is important to engage in the conversation surrounding dupes, even if not producing them. 

When considering day to day operations, artificial intelligence technology is likely to feature in the response of many businesses. AI technology can assist with identifying and flagging problematic dupes, alongside legal support tools which help brands to categorise and review risk as part of their broader strategy. Brand owners can harness AI by implementing technology directly into their business to inform their response to dupes, whilst benefitting externally from the innovation developed by third party platforms to reduce infringing content online.