The latest copycat product that is causing luxury brands to wring their hands in frustration is the “Walmart Birkin”, which recentlygarnered attention among consumers and luxury brands, alike. Designers’ and brands’ concern for fakes and unauthorized copies (or “dupes”) is far from new. Worries about copying and counterfeits have animated the fashion and luxury industry since its inception. Historian Veronique Poillard, for example, has detailed how couturiers in France have denounced copying since the late 19th century, a business concern that led to what we might call the first Fashion Law treatise focused on intellectual property rights in the fashion industry: Allart and Carteron’s treatise published in 1914.
A concern that unregulated copying was eating into American designers’ profits (and even undermining workers’ wages) in the 1930s led to what Scott Hemphill and Jeannie Suk Gersen described as a self-help regime that created a private intellectual property regime enforced by boycotts organized by the Fashion Originators’ Guild of America. Unsurprisingly, this regime led to an antitrust lawsuit that held the Fashion Originators’ Guild of American boycott scheme to be illegal under the Sherman Act. And this was, of course, long before the Tapestry and Capri Holdings merger fell apart thanks to the FTC’s objections almost a century later and before consumers took Hermès to court over its Birkin bag sales practices.
The Value of Dupes
What is new about the “Walmart Birkin” and the spectre of the power of a copy – or knockoff – that it raises is consumers’ recognition that dupes can, themselves, be authentic fashion products in their own right. In other words, consumers are not just buying a copy for a cheaper version of the real thing. Rather, copycat products have value in and of themselves as authentic fashion items that consumers want other consumers to know they have found and purchased.
> Dupes – whether “legally above-board products that take inspiration from other, existing (and often much more expensive) products” or “products that make unauthorized use of brands’ names and other legally-protected trademarks” – have their own narratives of authenticity that give them value on the market.
It might seem strange to speak of a dupe, especially one that is trademark infringing and/or a counterfeit good, as authentic. After all, we often think of fashion knock-offs’ authenticity as linked to the real thing – to the design or “original” fashion product it is copying. The fashion industry’s authenticity, in other words, is most often tied to official brand narratives, to the intangible symbolism in the logos which brands themselves put on the market, and to an association of fashion and luxury products with timeless concepts, like quality, with little regard for like price.
As Hermès’ Artistic Director Pierre-Alexis Dumas recently explained in a 60 minutes interview, “Expensive is a product which is not delivering what [it] is supposed to deliver but you’ve paid quite a large amount of money for it and then it betrays you.” Hermès products are not expensive, he says; rather, they are “costly” – products like the Birkin bag are made “properly with the required level of attention so that you have an object of quality.”
The Problem With “Authenticity”
The problem with this prevailing conception of authenticity in the fashion industry is that consumers may not always want the quality, or similar value propositions, that fashion and luxury brands are delivering through their designs or logos. Rather, consumers might want a different value that is still, however, tied up with a fashion brand’s logos and designs, but which the brand is not selling. This is the essence of dupe culture.
The challenge with this essence of dupe culture is that it sometimes, counterintuitively, requires the infringement of intellectual property rights that brands try to so closely guard. In the latest episode of A Fashion Law Dinner Party, Julie Zerbo discusses how the definition of dupes has changed over the past several years. Whereas dupes used to refer to products that were inspired by other products in the beauty or cosmetics space, now dupes refer to products that are counterfeit or otherwise infringing. Influencers have built up large followings as dupe influencers. Dupes can now refer to high quality, sophisticated super fake goods. There is a sense in dupe culture that consumers want to get a deal and buy products at a lower price point and, at the same time, beat fashion and luxury brands at their own games.
Trademark Challenges
Dupes raise challenges for trademark law. For one, when a trademark right in a design is based in secondary meaning, in consumers’ perception of a design as indicating one brand as the source of the goods, consumer perception of a design as a good itself and not a source indicator might undermine the strength of trademark protection. As trademarks have become goods themselves that consumers want, trademarks may risk losing the source-indicating function they are supposed to have.
Some brands might have little choice but to constantly police dupes that copy designs that arguably have secondary meaning to maintain the distinction between a design’s source indicative message and a design’s value as a product itself. In other words, brands might be particularly interested in policing dupes that copy designs registered as trademarks.
On the other hand, while the intangible values that surround a trademark might indicate goodwill and provide more reasons for consumers to associate a design with a brand, the intangible values in a design can also lead to a design’s use by consumers and third party brands in ways that might be outside of trademark law, like uses under the first sale doctrine or even parody.
In response to a proliferation of values that surround their brand, and consumers’ and third-party brands’ desire to comment upon and respond to those values, brands might go a step further and embrace some fakes as part of their own collections to make it harder for consumers to disassociate a dupe from a brand. In these cases, brands embrace a spectrum of what authenticity and fake mean to fortify arguments that dupes on the market might confuse consumers and inappropriately indicate the brand’s sponsorship or affiliation with a dupe.
When collections like the Gucci x Balenciaga Hacker project happen, brands are not selling or marketing a classic brand heritage built on an archive. Instead, brands are catering to Gen Z, and still other consumers who want something that is more contemporary than a buy-in to a brand’s heritage. The other message and value that consumers want even supports a culture of dupes and fractured information. Consumers that care about dupe culture might in the future care about heritage but, in the meantime, an embrace of dupe culture might become part of a brand’s present practices.
Influencers, IP, and Advertising
Consumer desires for dupes and perceptions of what dupes are can become even more complicated when influencers refer to copies of designs as authentic. Kim Kardashian referred to Clements Designs “unauthorized knock-off” furniture in her office as authentic Donal Judd designs. The Donald Judd Foundation sued to disassociate itself from the perception that the furniture was, indeed, authentic, and sought to enforce trademark rights in designs of the tables at issue. Even Kim Kardashian, who has access to the real thing is part of dupe culture by blurring the lines between fakes and originals through her own narrative of authenticity.
But what can influencers actually say about dupes? False advertising law regulates misleading claims and deceptive practices, and its sources include consumer protection statutes and deceptive practices act and even social media platforms’ terms of service. Influencers might be particularly wary of advertising or endorsing what Alexandra Roberts has termed scam dupes, dupes that are “egregiously poor quality, that do not come close to matching their advertised description or goods that never actually ship to purchasers.”
And as Roberts notes in the latest episode of A Fashion Law Dinner Party, while comparative advertising and talking about a different brand might be legal under nominative fair use in trademark law, comparative claims specifically like “this perfume smells just like this other perfume” have received mixed reviews in court.
Communicating the equal effectiveness of two different products (a dupe and the original) might qualify as false advertising because it is not a general, subjective statement of opinion but, rather, an objective statement that could be proved false. Consumer perception will also factor into the law’s characterizations of advertisements as misleading statements or objectively false statements. Actual opinions of influencers also matter: some dupe influencers, as Roberts details, use pictures of dupe products, endorse these products, but have never looked or touched the dupe products in person. Such practices might lead to false advertising claims.
Beyond intellectual property law, fashion industry professionals and consumers might appreciate the value of dupe culture as a part of culture writ large. In cultural heritage law, authenticity and cultural value are not necessarily tied only to an original or to the real thing. Dupes can have value as dupes. Fake paintings and works that are passed off as the work of famous artists may still have cultural value and can be deliberately preserved in museum collections and in other spaces of public trust for the knowledge and educational value they have.
When the Museum at FIT hosted the exhibition Faking It: Originals, Copies, and Counterfeits fakes and counterfeits were on display alongside originals. Some designers, like Coco Chanel, welcomed copies because designs, as ideas, were “made to be communicated.”
Some contemporary designers like Abigail Glaum-Lathbury challenge prevailing practices in the fashion industry, including the importance of trademarks and their economic value, through collections like Project G.U.C.C.I., the Genuine Unauthorized Clothing Clone Institute. In the latest episode of A Fashion Law Dinner Party, Glaum-Lathbury details her practice and how she supports current fashion students at the School of the Art Institute of Chicago and their critique and challenging of prevailing norms in the fashion industry.
Felicia Caponigri is a Visiting Scholar at Chicago-Kent College of Law and the Founder of Fashion by Felicia, LLC. An attorney by training and an academic by calling, she hosts A Fashion Law Dinner Party, a podcast which explores the links between design, heritage, and the law with guests from the fashion industry. This article is based on the latest episode of A Fashion Law Dinner Party on Authentic Fakes.
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