As Black Friday approaches, shoppers are gearing up to find deals on everything; from luxury cosmetics to designer handbags. Alongside genuine discounts, this shopping frenzy often brings an influx of “dupes” and counterfeit goods—two terms that are frequently confused but represent very different concepts. For trade mark owners, understanding the distinction is essential to protecting their brand, particularly during this peak shopping season.
What are dupes?
Dupes (short for “duplicates”), are affordable alternatives to high-end products that imitate their style, design, functionality, or features. They are particularly popular on social media platforms like TikTok and Instagram, where influencers promote “dupe deals” for Black Friday shoppers. For instance, a budget-friendly lip gloss resembling a premium brand's product may be marketed as a dupe, and costs a fraction of the price.
However, dupes do not typically copy trade marks, logos, or branding from the original product. They offer a similar aesthetic but are clearly sold under a different brand name, avoiding direct consumer confusion (which is a condition often needed to establish infringement). Legally speaking, dupes do not infringe trade mark rights unless they cross the line into unfair competition or misleading advertising.
Why dupes are an issue for IP Rights holders – Williams-Sonoma vs Dupe.com
The legal ambiguity around dupes has recently been tested in court. US-based home goods giant Williams-Sonoma is suing Dupe.com, alleging that the company is unlawfully replicating its products' design and functionality while riding on the goodwill of the Williams-Sonoma brand. The case highlights the tension between the concept of a "dupe" and intellectual property rights.
Williams-Sonoma argues that, while Dupe.com avoids direct trade mark infringement, the imitation of its proprietary designs and trade dress creates an unfair competitive environment. According to the complaint,
Dupe.com provides consumers with a tool that helps them to find identical or substantially similar products to designer goods. “Dupe.com is essentially a reverse image search that purports to allow users to identify duplicates or ‘dupes’ of furniture and other consumer products, either by going to ‘dupe.com’ and pasting the product’s URL into the search bar or by uploading a picture of the product into the Dupe.com website or app.
The lawsuit highlights that even without copying logos or trade marks, dupes can still infringe on broader intellectual property rights, particularly in relation to designs.
This case could set a legal precedent for how courts handle disputes around dupes, which currently sit in a legal grey area. It also serves as a wake-up call for trade mark owners to take a holistic approach to protecting their intellectual property, beyond just trade marks and logos.
What are counterfeits?
Counterfeits, in contrast, are deliberately deceptive imitations of authentic goods. Counterfeit products use trade marks, logos, and branding to mislead consumers into thinking they are purchasing the real thing (or to offer a cheap replica!). Counterfeit goods are a direct infringement of intellectual property rights and are often sold at a fraction of the price of genuine products, making them incredibly popular for a lot of consumers.
Unlike dupes, counterfeits infringe trade mark laws and present significant risks to consumers, including lower quality, safety concerns, and lack of warranty or support. Black Friday is notorious for a spike in counterfeit goods, especially online, as counterfeiters take advantage of the demand for cheap deals to push fake products onto the market.
Why Black Friday fuels the rise of counterfeits and dupes
The rise of dupes and counterfeits during Black Friday is fuelled by the volume of shoppers looking for bargains and the increasing influence of social media trends. Hashtags like #dupe and #BlackFridayDeals flood platforms like TikTok and Instagram, drawing consumers to cheaper alternatives.
While dupes cater to budget-conscious shoppers without directly breaking the law, counterfeiters take advantage of this period to blend in with the mass of legitimate deals, often targeting unsuspecting consumers who think they’ve stumbled on a discounted, genuine, luxury product.
How IP Rights owners can protect themselves
With the increased risks during Black Friday, trade mark owners should take proactive steps to safeguard their brand and intellectual property rights:
Monitor online marketplaces: Use automated tools or dedicated teams to track listings on e-commerce platforms for counterfeit goods. Platforms like Amazon and eBay offer brand protection programs to streamline reporting.
Engage social media platforms: Keep an eye on social media promotions, especially coming from newly created accounts set up specifically for Black Friday. While posts about dupes are generally permissible, content advertising counterfeits violates intellectual property rules and should be reported immediately by the IP rights holder to the relevant Social Media Platform. It is also possible to set up Social Media watches, which will enable the IP rights holder to catch the IP violations as soon as they occur.
Audit your IP rights: Ensure trade marks, trade dress and designs are well-protected and registered in all key jurisdictions. This strengthens the ability to take legal action against infringers.
Collaborate with authorities: Work closely with customs and enforcement agencies to prevent counterfeit goods from entering the market during Black Friday or otherwise.
At K&S we have a dedicated anticounterfeiting team who can provide expert guidance on how to best protect your intellectual property rights, defend them effectively and navigate any problems that may arise. If you have any questions or require further information, please do not hesitate to contact Celina Özcan, Carol Nyahasha or your regular advisor at Kilburn & Strode.