Authored By: Sumedha Patil
Balaji Law College, Pune
Abstract
The increased usage of various social media networks has given a boost to the concept of fashion dupes — a new-age phenomenon where consumers intentionally search for and buy a cheaper alternative which resembles an original luxury product without the insignia of the luxury brand.[1] The present research looks into the problems presented by fashion dupes in the field of intellectual property rights and examines the law of intellectual property in India in relation to the fashion dupe problem through the use of Indian legislation such as the Trade Marks Act, 1999, the Designs Act, 2000 and the Copyright Act, 1957 as well as through jurisprudence on fashion dupes in the USA and in Europe.[2] Using doctrinal legal research methodology, the author has taken into consideration available legislation, case laws and literature to analyse whether the law adequately protects against fashion dupes. The conclusion is that, at present, the legal framework protects counterfeit goods better than fashion dupes, leaving a substantial grey area that requires intervention at both the legislative and judicial level.
1. Introduction
The global fashion industry has undergone a remarkable transformation in the digital era. Social media platforms such as Instagram, TikTok, and YouTube have made access to luxury aesthetics very easy, enabling consumers across economic backgrounds to engage with high-fashion trends in various ways. Within this scope, the phenomenon of ‘fashion dupes’ — also known as ‘duplicates’ — has emerged as a culturally significant and legally debatable practice.[3]
Fashion dupes are products inspired by luxury or designer items that replicate their design or aesthetic without copying the brand’s trademark or passing themselves off as genuine articles. They must be distinguished from counterfeit goods, which are products deliberately manufactured and sold as though they were authentic branded items. A counterfeit Gucci bag, for example, bears the Gucci logo fraudulently; a dupe, by contrast, may closely resemble a Gucci design but carries an entirely different or no brand identity whatsoever.[4]
This is where the law is vital. Whereas counterfeiting is clearly outlawed by both trademark and consumer law in almost all jurisdictions, dupes fall within an increasingly grey area. The extent to which the law should regulate the dupe market involves difficult conflicts between encouraging artistic creation, protecting brand investment and market competition, and facilitating affordable consumer products.
This paper addresses the following central research question: To what extent should intellectual property law protect fashion brands against fashion dupes without undermining consumer access to affordable alternatives?
2. Background and Conceptual Framework
2.1 Fashion Dupes versus Counterfeits
Fashion dupes are aesthetically similar to high-end items. They mimic elements of design — silhouette, colour scheme, hardware placement, or pattern — without posing as real. Social media’s ‘dupe culture’ has normalised these products as consumers gladly share and promote budget-friendly alternatives to costly luxury goods.[5]
By contrast, counterfeiting is inherently deceptive. Counterfeit goods use the trademark, brand, and logo of the original product with the intention to deceive a customer into thinking they are buying the genuine article. The distinction is both legal and moral: counterfeiting is trademark theft and fraud, whilst dupes are more concerned with imitation, design influence, and the outer limits of intellectual property rights.[6]
2.2 Relevant Legal Framework
The principal statutes governing intellectual property protection in the Indian fashion industry are:
(i) Trade Marks Act, 1999: Protects registered trademarks, including brand names, logos, and distinctive marks, from unauthorised use that causes confusion or dilution.[7]
(ii) Designs Act, 2000: Provides time-limited protection (ten years, extendable by five) for the visual features of a product — its shape, configuration, pattern, or ornamentation.[8][9]
(iii) Copyright Act, 1957: Protects original artistic works, which may extend to fabric prints, graphic designs, and surface ornamentation.[10]
Conceptually, the analysis engages with trademark infringement, passing off, design protection, and consumer confusion — each of which frames the legal inquiry into whether and how dupes infringe existing rights.
2.3 Existing Scholarship
The academic discussion surrounding fashion law has mostly tended to fall between two opposing positions. On the one hand, writers such as Kal Raustiala and Christopher Sprigman have argued, using US fashion law as evidence, that the absence of strong design protection may in fact stimulate innovation through the diffusion of styles and ‘induced obsolescence’, which creates demand for new products.[11] The other position, championed by scholars studying the European and luxury fashion sectors, argues for robust IP protection to encourage continued investment in creative design.[12] The intersection of fast fashion, luxury branding, consumer rights, and digital commerce necessitates a nuanced legal analysis that this paper seeks to provide.
3. Legal Analysis
3.1 Are Fashion Dupes Illegal?
The legality of fashion dupes remains contested. It is argued that dupes diminish brand value, harm reputation, and discourage originality and investment in creative endeavour. A dupe so closely resembling a luxury fashion piece that an unwary consumer could associate it with the brand could potentially attract legal consequences, even where no strict trademark issue exists.[13]
In contrast, principles of market competition counsel against granting fashion brands monopoly rights over the design of a particular look. Unlike literature or music, fashion is, to a large extent, built on inspiration, imitation, and subsequent invention; broad intellectual property rights in this space would have a damaging effect on small businesses, emerging designers, and consumers of modest means.[14][15]
3.2 Trademark Protection
Brand names, logos, and distinctive signs identify the source of goods and services. Under the Trade Marks Act, 1999, infringement occurs when identical or similar marks are used in relation to identical or similar goods in a manner likely to cause confusion.[16][17]
Typically, a fashion dupe does not carry the brand owner’s trademark. A tote bag that mimics a Bottega Veneta weave design but is sold without the Bottega Veneta label will likely not infringe any trademark. Issues arise when a design feature itself functions as a trademark — often called ‘trade dress’. A unique design element that has acquired ‘secondary meaning’, such that the public associates it exclusively with the plaintiff’s product, can ground a passing-off or dilution claim.[18][19]
3.3 Design Protection
The Designs Act, 2000 confers rights over the ornamental or aesthetic aspects of a product applied to an article by an industrial process. For registration, a design must be new or original. The registered proprietor enjoys an exclusive right to apply that design to the relevant article for ten years, extendable by a further five.[20][21]
The problems inherent in applying design law to fashion are manifold. The commercial life cycle of a fashion product can be as short as three to six months, yet the registration process in India can take considerably longer.[22] By the time protection is secured, the design may have lost market relevance. Moreover, rights attach to the specific registered design, not to the aesthetic concept behind it: minor variations — a rounded handle instead of straight, proportions slightly shifted, hardware repositioned — may suffice to distinguish a dupe from the registered design and avoid infringement.[23]
3.4 Social Media and Dupe Culture
The digital space has revolutionised both fashion consumption and the policing of intellectual property. Influencer culture on platforms such as TikTok and Instagram has given rise to the ‘dupe haul’ — a content genre that functions as persuasive endorsement of designer-inspired knock-offs.[24]
An interesting question of secondary liability arises: should influencers who advertise dupes be legally liable for IP infringement? Indian law currently provides no statutory basis to hold content creators liable merely for exhibiting and recommending products where those products are not themselves determined to be infringing.[25] Where, however, the product does infringe a design or trade mark, commercial endorsement of it could affect a passing-off analysis, as it may cultivate a consumer association between the dupe and the original luxury item.
4. Case Law Discussion
4.1 Christian Louboutin S.A.S. v. Yves Saint Laurent America, Inc. (2nd Cir. 2012)
This landmark United States decision examined whether the Christian Louboutin red lacquered sole was protected as a trademark.[26] The Court of Appeals held that the red sole was a valid trademark when juxtaposed with an upper of a contrasting colour, but declined to extend protection where the entire shoe was red.[27] The case illustrates that design features can acquire trademark status through sustained use over time (secondary meaning) and that courts will draw precise distinctions between a protectable distinctive element and an impermissible monopoly over a colour or style. The ruling carries implications for Indian fashion law: an element such as a specific quilt-stitching pattern or a particular chain-strap configuration may become sufficiently identified by consumers to serve as a brand indicator and attract passing-off protection, even in the absence of trademark registration.[28]
4.2 Louis Vuitton Malletier S.A. v. My Other Bag, Inc. (S.D.N.Y. 2016)
The defendant produced a range of canvas tote bags featuring a cartoon rendering of the Louis Vuitton Speedy bag, bearing the tagline ‘My Other Bag…’.[29] The court dismissed claims of trademark infringement and dilution, holding that the tote bag constituted parody and that consumers were unlikely to be confused as to source or sponsorship.[30] For fashion dupes, the key takeaway is that where no reasonable consumer is likely to be confused — where an ordinary purchaser understands they are acquiring a dupe and not the original — trademark claims will generally fail.
4.3 Hermès International v. Mason Rothschild (S.D.N.Y. 2023)
This dispute, arising in the non-fungible token (NFT) space over digital ‘MetaBirkins’, tested the reach of Hermès’ trade dress and trademark rights in the Birkin bag across virtual environments.[31] Hermès prevailed at trial; the jury found infringement and dilution of its trademark.[32] The case is significant for its extension of luxury brand protection into digital and virtual spaces, demonstrating that certain celebrated luxury design concepts may attract substantial trade dress protection beyond the brand logo itself — a consideration increasingly relevant as fashion, social media, and digital commerce converge.
5. Critical Analysis and Findings
Several significant observations emerge from the foregoing discussion. First, under Indian law, and similarly under US and EU systems, existing intellectual property law is far more robust against counterfeiting than against fashion dupes. The statutory frameworks were designed principally to address intent-based falsification and trademark misuse, not aesthetic mimicry.[33][34]
Second, gaps in existing law — slow registration procedures, narrowly defined design rights, and the absence of unregistered design rights in India (unlike the EU) — are readily exploited by dupe manufacturers.[35][36]
Third, comparative analysis reveals divergence. In the EU, under the Community Design Regulation, automatic unregistered design protection subsists for three years from the date of first disclosure — a period more commensurate with fashion’s rapid commercial cycles. India offers no equivalent provision.[37] There is a strong case for using the EU model as a legislative reference point.
Fourth, social media influencers and platforms remain largely outside the existing legal regime. Although the law on platform liability continues to evolve under the Information Technology Act, 2000, there is no specific provision directed at the promotion of dupes on digital platforms.[38][39]
In sum, the law as it stands protects trademark owners and registered design proprietors adequately, but leaves a legislative gap around fashion dupes that fall short of outright counterfeiting. Whether and how that gap should be narrowed is ultimately a policy question involving competing interests in innovation incentives, consumer welfare, and market competition.[40]
6. Conclusion
This paper has examined the extent to which intellectual property law adequately protects fashion brands against fashion dupes while simultaneously preserving consumer access to more affordable alternatives.
The analysis demonstrates that, although counterfeiting is adequately addressed by current law, fashion dupes occupy an ambiguous and largely unprotected space. The appropriate conclusion is a nuanced one: the law should protect genuinely original and inventive fashion — distinctive design elements, trade dress, and ornamental surface treatment — but should not grant exclusive rights over mere aesthetic inspiration or stylistic tendencies that animate the industry.[41] Dupes that are neither deceptive of consumers, nor in infringement of a trademark, nor copies of a registered design ought not, as a matter of principle, to be prohibited.
However, reform is warranted in two specific areas. First, the law should incorporate automatic unregistered design rights for a brief transitional period, similar to the EU regime, to better accommodate the ephemeral commercial cycles of the fashion industry and reward investment in innovation.[42] Second, the law should provide clarity regarding influencer liability for the promotion of potentially infringing products, addressing an enforcement gap that is increasingly problematic in the online marketplace.[43] Until these reforms are enacted, fashion dupes will remain visible to all and adequately governed by none.
Reference(S):
Statutes
Trade Marks Act, 1999 (India)
Designs Act, 2000 (India)
Copyright Act, 1957 (India)
Information Technology Act, 2000 (India)
Community Design Regulation (Council Regulation (EC) No 6/2002)
Cases
Christian Louboutin S.A.S. v. Yves Saint Laurent America, Inc., 696 F.3d 206 (2d Cir. 2012)
Louis Vuitton Malletier S.A. v. My Other Bag, Inc., 156 F. Supp. 3d 425 (S.D.N.Y. 2016)
Hermès International v. Mason Rothschild, No. 22 Civ. 384 (JSR) (S.D.N.Y. 2023)
Cadila Healthcare Ltd v. Cadila Pharmaceuticals Ltd (2001) 5 SCC 73
Colgate Palmolive Co v. Anchor Health and Beauty Care Pvt Ltd (2003) 27 PTC 478 (Del HC)
Books and Journal Articles
Barton Beebe, ‘Intellectual Property Law and the Sumptuary Code’ (2010) 123 Harvard Law Review 809
Rosemary J. Coombe, The Cultural Life of Intellectual Properties (Duke University Press, 1998)
Susy Frankel and Daniel Gervais (eds), The Evolution and Equilibrium of Copyright in the Digital Age (Cambridge University Press, 2014)
Kal Raustiala and Christopher Sprigman, ‘The Piracy Paradox: Innovation and Intellectual Property in Fashion Design’ (2006) 92 Virginia Law Review 1687
Online Resources
World Intellectual Property Organization (WIPO), ‘Fashion and Intellectual Property’ <https://www.wipo.int/ip-outreach/en/ipday/2019/articles/fashion-and-ip.html>
SCC Online — Indian case law database
[1]See generally Kal Raustiala and Christopher Sprigman, ‘The Piracy Paradox: Innovation and Intellectual Property in Fashion Design’ (2006) 92 Virginia Law Review 1687, 1689.
[2]World Intellectual Property Organization (WIPO), ‘Fashion and Intellectual Property’ <https://www.wipo.int/ip-outreach/en/ipday/2019/articles/fashion-and-ip.html> accessed 1 June 2025.
[3]The term ‘dupe’ is shorthand for ‘duplicate’, now widely used in consumer and social media discourse to denote a cheaper look-alike of a luxury product. See Barton Beebe, ‘Intellectual Property Law and the Sumptuary Code’ (2010) 123 Harvard Law Review 809, 812.
[4]Trade Marks Act 1999 (India), s 29(1) defines infringement as the use of a mark identical or deceptively similar to a registered mark in the course of trade; counterfeits squarely fall within this provision.
[5]Raustiala and Sprigman (n 1) 1710–1715, arguing that the fashion industry’s ‘induced obsolescence’ cycle functions effectively even in the absence of strong design protection.
[7]Trade Marks Act 1999 (India), s 2(1)(zb) defines a ‘trade mark’ as a mark capable of being represented graphically and of distinguishing the goods or services of one person from those of others.
[8]Designs Act 2000 (India), s 2(d) defines ‘design’ as the features of shape, configuration, pattern, ornament or composition of lines or colours applied to any article by any industrial process.
[9]Designs Act 2000 (India), s 11(1)–(2): initial protection of ten years, extendable by a further five years on payment of the prescribed fee.
[10]Copyright Act 1957 (India), s 13(1)(a) extends copyright to ‘original artistic works’, which encompasses fabric prints, graphic embellishments, and surface ornamentation under s 2(c).
[12]Susy Frankel and Daniel Gervais (eds), The Evolution and Equilibrium of Copyright in the Digital Age (Cambridge University Press, 2014) ch 3.
[14]Raustiala and Sprigman (n 1) 1695–1697; Rosemary J Coombe, The Cultural Life of Intellectual Properties (Duke University Press, 1998) 7–12.
[15]Beebe (n 3) 845, observing that broad IP rights over aesthetic styles risk granting fashion brands ‘sumptuary’ power to control how consumers express identity and class through dress.
[17]Trade Marks Act 1999 (India), s 29(1)–(3).
[18]Trade Marks Act 1999 (India), s 2(1)(zb); s 29(1). The concept of ‘passing off’ at common law supplements the statutory regime: see Reckitt & Colman Products Ltd v Borden Inc [1990] 1 WLR 491 (HL), adopted in Indian jurisprudence.
[19]The doctrine of ‘trade dress’ under US law — 15 USC § 1125(a) — and its Indian analogue through passing off: see Cadila Healthcare Ltd v Cadila Pharmaceuticals Ltd (2001) 5 SCC 73.
[22]Designs Act 2000 (India), s 4 (novelty requirement); s 5 (registration procedure). The average pendency of a design application before the Patent Office, Designs Wing can exceed 12–18 months.
[23]Designs Act 2000 (India), s 22: infringement consists in applying a registered design or a fraudulent imitation thereof to an article; minor variations may defeat a claim.
[25]Information Technology Act 2000 (India), ss 79 and 2(w) provide a safe harbour for intermediaries who do not exercise editorial control, limiting direct liability of social media platforms.
[26]Christian Louboutin SAS v Yves Saint Laurent America Inc, 696 F 3d 206 (2d Cir 2012).
[27]ibid 228: the court applied the ‘likelihood of confusion’ standard of 15 USC § 1114 and declined to extend protection to a monochromatic red shoe.
[28]For analogous Indian recognition of trade dress, see Colgate Palmolive Co v Anchor Health and Beauty Care Pvt Ltd (2003) 27 PTC 478 (Del HC).
[29]Louis Vuitton Malletier SA v My Other Bag Inc, 156 F Supp 3d 425 (SDNY 2016).
[30]ibid 431–433, applying the parody defence under 15 USC § 1125(c)(3)(A) and concluding that a sophisticated consumer would recognise the bag as commentary rather than a genuine LV product.
[31]Hermès International v Mason Rothschild, No 22 Civ 384 (JSR) (SDNY, judgment 8 February 2023).
[32]ibid: the jury found wilful trademark infringement and dilution; the court awarded USD 133,000 in damages and a permanent injunction.
[36]Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs [2002] OJ L 3/1, art 11: unregistered Community design protection subsists for three years from the date on which the design was first made available to the public within the Community.
[39]Information Technology Act 2000 (India), s 79 (safe harbour for intermediaries); Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, r 4(1)(d) (takedown obligations for notified unlawful content).
[40]For the policy tension between innovation incentives, consumer welfare, and market competition in IP design, see Raustiala and Sprigman (n 1) 1762–1765; Frankel and Gervais (n 6) 201–210.
[42]Council Regulation (EC) No 6/2002 (n 27), art 11. A comparable domestic provision would address the ‘registration lag’ identified at section 3.3 above.
[43]Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, r 7 (loss of safe harbour upon non-compliance); Beebe (n 3) 860.
