If you’ve been following my content, you often hear me say building a strong brand is one of the most important things in today’s business environment. And one of the signs you have a strong and successful brand is when you start seeing counterfeit products.
According to OECD data, the global trade in counterfeit goods in 2023 was $1.023 trillion, or 3.3% of the total global trade. And despite efforts from brands and marketplace operators, these products are all over merchant websites, including some of the most popular.
But counterfeit items aren’t the only type of intellectual property (IP) concerns brands have. We have seen the concept of “dupes” getting a lot of traction on social media recently. And the difference between counterfeits and dupes can be a little tricky to understand. Are dupes legal or is it a fancy word to designate counterfeits?
Understanding the difference is especially important for brands in the fashion or skincare industry, but I believe that dupes could expand to other industries as well. Let’s try to clarify what the difference is, and how it impacts brands.
Differences Between Counterfeits and Dupes
Some people use the terms “counterfeits” (or more familiarly “fake products”) and “dupes” interchangeably. This is a mistake: these terms represent two different concepts, with significant legal differences.
Counterfeits
Counterfeit items are unauthorized replicas of genuine products, often designed to trick consumers into believing they are purchasing the real thing. Sometimes, customers buy them knowing these aren’t real (Come on, you know this $20 brand new Louis Vuitton purse you saw at the flea market isn’t authentic). These items infringe on trademarks, copyrights, or patents held by the original brand. Sellers of counterfeits use the original brand reputation to make a profit, while rarely offering the same level of quality control. As you can expect, counterfeits are completely illegal.
Dupes
“Dupes,” short for duplicates, are products that look like high-end branded items but do not attempt to pass off as the original. They can have similar style and function as the original product, but do not use the same trademark and brand names. There is no confusion for customers, as they understand that they are not buying the original product or brand.
As opposed to counterfeits, dupes are generally legal as long as they do not violate any patents or directly copy protected elements of the original product.
Let’s look at two examples mentioned in an article on thelawlegal.co.uk. The first one is the chain of supermarket Aldi selling £6.99 dupes of Charlotte Tilbury’s famous Filmstar Bronze & Glow palette. According to The Mirror, a High Court judge ruled that Charlotte Tilbury’s copyrighted packaging had been copied, which includes a specific pattern on the makeup and the diamond impression on the outer tin.
On the other hand, the Dior Saddle Bag was successfully duped. The luxury brand was unable to register its Saddle Bag as a 3D mark in 2021, as it was ruled that it lacked distinctiveness.
To summarize the differences between counterfeits and dupes:
| Counterfeits | Dupes | |
| Trademark Infringement | Identical or nearly identical logos, brand names, and packaging as the original products | Dupes use similar designs, but do not use the same brand names or logos as the original product. |
| Customer Perception | Sellers of counterfeit products sometimes scam customers, tricking them into believing the product is genuine. | Dupes aren’t designed to scam or trick consumers, as they know they are not buying the original item. |
| Legal Considerations | Counterfeits are illegal, plain and simple | Dupes operate in a grey area. Tehy are generally legal, unless they violate a patent or protected element of the original item. |
Counterfeits and Dupes in the Ecommerce Space
While ecommerce makes it easy and convenient to shop for millions of products, it also facilitates the sale of dupes and the more problematic counterfeits.
Let’s talk about counterfeits first. Some of the most impacted industries by counterfeits are fashion, luxury items, jewelry, and cosmetics. These products are all over the internet, including on some popular marketplaces like Amazon, eBay, or Etsy.
A representative of Red Points, the largest IP service provider, discussed counterfeits issues in an article on Glossy.co. They stated that “the number of infringement violations for the beauty, personal care, and beauty device categories have increased in the last few years with a compound annual growth rate of 62% between 2018 and 2023, including a major jump over the past 24 months.”
Sellers of counterfeits will often use fake or stolen images from genuine products and abuse fake reviews to make them look legitimate.
In addition to large brands like Dior, there has been a lot of uproar from small businesses and independent creators claiming Temu/Shein allegedly stole their designs. This is obviously a huge issue, as some reported a drastic slowdown of their sales following the items being listed on Temu.
Counterfeits are always discussed on social media, especially among younger customers.
Dupes are also a popular theme, with a ton of new content every day from people discussing their latest findings.
Let’s look at the three types of products sold and discussed online and how they impact the original brands.
1. Counterfeits When the Customer Believes They Are Buying a Legitimate Product
This type causes the most damage to brands and can become a customer service nightmare, impacting the brand image. It also obviously takes revenue away from the brands, as the customers were likely to buy from them. This is especially bad in some industries like skincare or cosmetics, as these products can be unsafe to use if they don’t meet certain quality standards.
Scammers will steal product images from the original brand and set a price high enough that customers believe they are getting an authentic item. When the item is listed on marketplaces, it is also an issue for the marketplace operators. Finding these scammers and removing their listings takes a lot of resources, and this type of offer is more difficult to spot than the other two listed below.
1B. Counterfeits When the Customer Willingly Knows That They Are Purchasing a Counterfeit Product
While still damaging the brand image, in this case, customers are less likely to complain. Most of them know they are getting a counterfeit product because they are paying a very low price, and it is often obvious the product quality or features are different.
Customers buying these products are also less likely to buy from the original brand at much higher prices. It takes some work to take down these online offers, but fortunately, they are easier to spot.
2 – Dupes
Dupes are not counterfeit items and are generally legal to sell. These products are likely to take some market share away from the brands they imitate, at least in the short term.
Dupes typically do not have the same brand image or distribution network as the original brand. However, because these are so often discussed on TikTok, dupes can go viral and see their sales spike in a short amount of time.
Unless they think they can sue based on IP violations and win (see the example above of the Filmstar Bronze & Glow palette), brands need to see dupes as new competitors.
What Can Brands Do to Protect Themselves?
1 – Against counterfeits
Invest in IP Protection: Brands should register their trademarks, patents, and copyrights to establish legal protections for their products and designs. This also includes protection within marketplaces, such as registering products with Amazon’s brand registry.
Use Technology: Brands can use technologies like digital watermarking, serial numbers, and RFID tags to track and authenticate genuine products across the supply chain. These technologies make it easier to track products and authenticate counterfeits.
Proactive Customer Engagement: Brands can be proactive in how they deal with customers buying counterfeits. For example, the brand Laneige reported routinely ordering counterfeit products to understand what consumers are receiving, so they can be prepared to answer complaints and concerns. The same brand’s parent company, Amorepacific, designed a website for consumers to report issues (AmorepacificCounterfeitReport.com), hoping that it will help in fighting IP violations.
Legal Action: In some cases, brands need to take legal action against counterfeiters, such as civil litigation, cease-and-desist letters, and takedown notices.
2 – Against Dupes
Monitor the Market: Brands must constantly monitor the emergence of dupes and similar products in the market. In some cases, brands can report trademark or patent violations if the dupe infringes on protected elements.
Strong Brand Identity: When dealing with dupes, having a strong brand identity and effectively communicating the unique value of their product is key. If the original products have stronger features than dupes, customers should be educated on what quality standards set the brand apart from competitors.
Innovation: The original brands often have strong expertise in their industry and can continuously innovate. The large amount of social media content on dupes can help brands understand customer behavior and expectations better and help them adapt their offer.
Conclusion
Counterfeits have always been an issue for brands, and ecommerce makes it easier for scammers to offer their fake items online. It takes a lot of work for brands to fight counterfeits.
On the other hand, dupes are often legal and have gained a lot of popularity recently thanks to social media. These competitors are another threat for brands, requiring extra resources as they are sometimes in a gray area and can violate brands’ intellectual property.
It is important for brands to be proactive and constantly monitor customer feedback, or these two types of products can take away market share and/or damage the brand image.
https://www.glossy.co/beauty/how-laneige-is-taking-on-temu-counterfeiters
https://www.globaleyez.net/en/dupe-products-vs-your-ip-rights
https://thelawlegal.co.uk/articles/f/dupes-counterfeits-and-the-ip-implications
