THE LEGAL STATUS OF FASHION DUPES: DISTINGUISHING INSPIRATIONS, KNOCKOFFS AND COUNTERFEITS IN FASHION LAW

1. ABSTRACT

The emergence of “dupe culture” has created an international trend in which higher-end fashion brands’ aesthetics are imitated without infringing traditional trademark rights. Unlike knockoffs that replicate trademarks without authorization, “dupes” exist in a grey area because they accurately reflect the essence of the original design without replicating the specific details of that design. This article examines the three-pronged distinction between inspiration, knockoffs and counterfeits under global fashion law and assesses whether there are appropriate legal mechanisms within Indian laws related to the Copyright Act 1957^[1], the Design Act 2000^[2] and the Trade Marks Act 1999^[3] as well as the US Lanham Act and the EU Community Design Regulation to address dupe culture from both substantive and procedural perspectives. The article provides an overview of key judicial rulings at both domestic and international level in addition to identifying weaknesses in these statutes, and argues that existing IP statutes are insufficient to adequately address the complex legal issues posed by these fashion replicas.

2. KEYWORDS

Dupe Culture, Trade Dress, Counterfeiting, Intellectual Property, Fashion Law

3. INTRODUCTION

While two items may appear identical at first glance, a luxury handbag with an MSRP of INR 3,00,000 and a ‘dupe’ sold in an Instagram shop for INR 1,500 do not reproduce any registered trademarks or make any claims of authenticity. However, the bags have very similar aesthetics, silhouette, hardware placement and design language. The paradox of fashion dupe culture is at the center of the contemporary fashion law challenge, and it has not yet resolved this conflict.

The global fashion industry’s value exceeds USD 1.7 trillion, where the counterfeiting clothing, footwear and accessories comprise nearly two-thirds of all counterfeit products seized worldwide, and the illicit global trade in counterfeit apparel was estimated at USD 467 million as of 2021.^[4] The challenge for contemporary fashion law and the legal language lies in how those legal protections are grounded in trademarks and registered designs. A consumer’s value of aesthetic imitation as a virtue has become normalised, making it difficult for law to regulate the clothing that is commonplace and popular in today’s marketplace.

The difference between inspiration, knockoffs, and counterfeits has profound legal implications. The same good may be a criminal, civil, or entirely lawful competitive product depending on the relevant legal category. The Copyright Act of India has provided for, but has not established, a cohesive legal and statutory framework for fashion. As a result of an absence of effective legal protections of fashion, dupes have been able to substantially replicate designer works without facing legal consequences.The international legal frameworks of the United States and the European Union provide insight into the differences that exist between Indian law and international fashion law, as well as into the superior protections the latter provides to designers.

In general, this article concludes that while the tripartite distinction of inspiration, knockoff, and counterfeit has some legal significance, it does not, however, have practical significance to the designer. Furthermore, engaging with the commercial practice of duping provides an opportunity for developing new legislation that will more effectively address the issue of duplicating fashion goods. By conducting a full statutory analysis of emerging case law along with a comparative analysis of the two international frameworks of the EU and the US, this article will provide an overview of the current legal landscape and provide insight into the legal evolution that must occur.

4. BACKGROUND / CONCEPTUAL FRAMEWORK

To discuss the topic of fashion duplicates legally, we must first understand the definitions of inspiration, a knockoff, and a counterfeit, which often get mixed up in everyday life but have different legal rights.

Counterfeits are the products that have a trademark or logo of a well-known brand that has been illegally copied on their product (or product packaging) to mislead a consumer into thinking they are purchasing a “real” product made by that company. Counterfeit products infringe on trademarks under section 29 of the Trade Marks Act 1999^[5], and they are also illegal under section 105 of the same act as well as section 63 of the Copyright Act 1957^[6].

Unlike counterfeits, Knockoffs and Fashion Dupes use the same general look of the product with no advertising of an established brand and no reference to the brand name. Consumers who buy these products do so knowing that the product is not the original brand, they purchase the product primarily because it “looks” similar to the original  product. Therefore, they don’t appeal to the misleading representation of the source and therefore cannot be classified as a trademark infringement.

The third form is Mere inspiration, which is simply using the past creative designs as a starting point to create something new. Fashion, like many other industries, has its own cyclical trends which help determine how often designers can change their original work legally and commercially in order to stay within the terms of contract law. This represents an extreme limit for designers.

There are three primary legal foundations for distinguishing between these different types of inspirations in India:

(i) The Copyright Act, 1957 (governs artistic works such as fabrics and prints)

(ii) The Designs Act, 2000^[7] (applies only to new designs, not those that have already been commercially produced by other companies, or that were originally designed by someone else)

(iii) The Trade Marks Act 1999 (outlines rules pertaining to identifying products and services and also identifies general requirements for registering trademarks).

Further, India is also a member of TRIPs, Trade Related Aspects of Intellectual Property Rights, which establishes certain minimum standards of protection under Articles 25 and 26^[8] of the TRIPs agreement requiring India to provide some level of protection to designs.

In comparison, the US utilize the Lanham Act^[9] and Copyright Act^[10] as their principal means of legally enforcing design protection, while member countries of the EU employ both registered and unregistered designs through the layered regulation of (EEC) No 6/2002, as amended in 2024.^[11]

5. LEGAL ANALYSIS

5.1 The Copyright–Design Conflict Line in Indian Law

The primary shortcoming of the Indian fashion law framework is within the intersection, and as a result, conflict, between the Copyright Act 1957 and the Designs Act 2000. As per Section 15(2) of the Copyright Act, copyright protection ceases to exist for any work which is made into an object and reproduced at least fifty times^[12]. Therefore, if a designer produces a print/motif but limits the production to less than fifty units, there is copyright protection available to the designer for an injunction against anyone who tries to copy the designer’s print/motif. However, once the same print/motif has been produced more than 50 times, the designer will no longer have copyright protection.

Consequently, if the designer does not register for design rights under the Designs Act, the designer will have no enforceable rights over his/her print/motif. Furthermore, the cost of design registration, novelty conditions, and the restrictive definition of ‘design’ under Section 2(d) of the Designs Act^[13] (i.e. must be limited to only shape, configuration, and other features) make it very unlikely that any fashion designer is able to have a practical and effective right to obtain protection for his or her fashion designs in India at a mass production level.

The current structure of the law provides a perverse incentive in terms of design protection – the more successful a design is commercially, the less protection a design receives. As a result, a manufacturer of dupes who copies a high-volume garment is, paradoxically, in a more legally backed position than one who copies a limited edition piece.

5.2 Passing Off Doctrine and Trade Dress

While there is no express definition of “trade dress” in Indian Trademark Law, Courts have interpreted the passing off doctrine to apply to the overall visuals and commercial impression of a product that has developed a secondary meaning. The test is drawn from the classical trinity of passing off, which is based on misrepresentation, goodwill and damage so that consumers associate that particular aesthetic with a specific source of goods or business.

Dupe manufacturers are incredibly careful to avoid the type of misrepresentation that the passing off doctrine requires. For instance, a dupe sold as “luxury-inspired” on social media does not denote that it is the original. Consumers cannot be confused with these products, but rather share in the deception. The traditional passing off framework was created in a world where imitation was meant to confuse, thus it struggles to address an economy of imitations where providing transparency about the imitative nature of the product is part of the value proposition.

According to Section 2(1)(zb) of the Trade Marks Act 1999, a trademark is defined as a mark designed to differentiate the products of one individual from those produced by another^[14]. To determine whether trade dress can be protected, it must be shown that the visual representations have developed uniqueness adequate enough to act as a source designator; otherwise, it is very challenging to demonstrate that design features alone satisfy this level of uniqueness as relates to the use of illicit imitations – examples being silhouettes, stitching patterns and/or arrangements of hardware even if they exhibit significant distinction within the marketplace.

5.3 The US v. EU: Comparative Position

The differences in legal frameworks used by the US and EU as regards to Trade Marks and Trade Dress are illustrative of the differing approaches of two distinct jurisdictions. In The US, under the Lanham Act’s trade dress provision 43(a)^[15], the concept of trade dress encompasses the Total Appearance of a Product regardless of whether or not there are any registered trade marks associated with that Product. Additionally, although the ‘Likelihood of Confusion’ test can provide an inadequate ’cause of action’ against imitators of a Trade Mark or Trade Dress in certain circumstances, it is still an option available to brand owners who can demonstrate that their Trade Dress has acquired source identification through commercial use. The recent case of Lululemon Athletica Canada Inc v Costco Wholesale Corp^[16] illustrates the increasing willingness of the US courts to apply trademark and anti-competitive principles to the aesthetic imitation of other brands.  This case demonstrated that Lululemon could assert a Trade Dress infringement claim against Costco for its imitation of Lululemon’s activewear design even though Costco did not copy Lululemon’s logo .

The European Union offers more robust protection for designers through the Community Design Regulation’s Automatic Unregistered Community Design (UCD) which provides the designer with 3 years of protection from the date a new design is publicly available and creates an exclusive right to the designer without the need for a registration formality.^[17] This no-cost, immediate right of protection against copying was designed specifically to respond to the fast-paced fashion cycle and is not subject to a threshold of fifty copies, which would undermine the designer’s protection by copyright law in India. If designers have created designs that are expected to be sold for an extended period of time (twenty-five years), they may obtain a Registered Community Design (RCD) to provide them with protection.^[18]

There is no UCD equivalent in India and the absence of an unregistered design right in Indian law represents a major structural shortfall in the protection offered by the domestic framework. The Designs Protection Act in India requires the designer to file an application for registration, prove that the design is novel, and pay a fee to obtain protection. These requirements create an economically unsustainable burden on designers due to the number of fashion designs that are produced and copied each year.

5.4 The Digital Amplification of Dupes

The rise of dupe culture cannot be divorced from the nature of social media commerce. Platforms such as Instagram, TikTok, and other online marketplaces have made the recommendation of dupes mainstream and monetised it. The use of hashtags and algorithmic recommendations lead consumers towards cheaper alternatives to products to inspire creative thought prior to making purchases. Whether a platform is liable for hosting content that promotes dupes is not clear under Indian law. The notice-and-take-down system established by the IT Act is solely reactive and does not serve as a preventative weapon. Brand owners, due to the lack of proactive intermediary responsibilities in India, are left to pursue costly litigation on a case-by-case basis. Due to the high costs involved, only a small number of up-and-coming designers are likely to engage in this process.

6. CASE LAW DISCUSSION

6.1 Rajesh Masrani v Tahiliani Design Pvt Ltd (Delhi High Court, 2008)

This ruling remains the principal Indian case concerning copyright and design protection in fashion.^[19] The defendant unlawfully reproduced Tarun Tahiliani’s distinctive textile designs. The defendant contended that there could be no copyright protection under Section 15(2) because the textile prints were capable of being registered as designs but were not registered, and had already been produced in an industrial setting.

The Delhi High Court granted an injunction in favour of Tahiliani, but only because the prints produced by Tahiliani had not exceeded the fifty-copy limit for copyright protection, a result that means copyright exists in the prints^[20]. However, upon a critical reading of this case, it does not validate the Indian legal regime, it reveals its fundamental defect. The basis of the designer’s protection was the fact that his product had not been produced in large quantities.In short, rather than providing reassurance, this case implicates the fifty-copy limitation as a ceiling of protection for designers.

6.2 Star Athletica LLC v Varsity Brands Inc (US Supreme Court, 2017)

This historic ruling out of the United States changed the way copyright law is applied to clothing design significantly.^[21] Varsity Brands took Star Athletica to court for taking two-dimensional surface graphics (stripes, chevrons, and colour blocks) and creating duplicates on rival cheerleading uniforms. The primary legal issue in dispute was whether the “separability” doctrine in copyright: specifically, whether design aspects embedded in a functional object can be protected by U.S. copyright law..

In a 6-2 opinion written by Justice Thomas, the Supreme Court ruled that a design feature is capable of obtaining federal copyright protection if it can exist as a separate work of art and if such a design could have also qualified as a pictorial, graphic, or sculptural work if viewed independently from the functional object to which it is attached.^[22] The outcome of this ruling widened the ambit of copyright over apparel, thereby affecting how manufacturers of duplicate garments operate under copyright law.

On the other hand, the Court made clear that the copyright protection provided to clothing design does not extend to the cut, shape, or silhouette of clothing garments, which are the primary clothing design elements copied by manufacturers of duplicate clothing items. By creating an expanded definition of copyright protection for clothing design elements, this ruling provided an avenue for protecting fashion-related IP but at the same time restricted copyright protections for the spans of fashion items where duplicate clothing companies operate.

6.3 Sabyasachi Mukherjee v H&M India ( Public Controversy, 2023–2024)

The major unresolved dispute involving H&M India and sabyasachi, provides valuable detail to examine further in this analysis.^[23] Sabyasachi Mukherjee claims that H&M India has reproduced popular ornamental motifs and/or embroidery motifs from his design and/or collection in low-end products (manufactured without using any of his registered trademarks). This case has not proceeded through formal court proceedings to a conclusion.

This dispute illustrates the underlying legal issue: the elements that allegedly were reproduced, ornaments/embroidery motifs, fall into an area that has resulted in a great deal of litigation, relating to copyright and design protection. Establishing a finding of passing-off was difficult due to a lack of consumer confusion. The dispute illustrates that there is currently no clear cause of action in the existing Indian legal framework against mass-produced products, using a celebrity designer’s reputation and the designer’s aesthetics without any registered trademarks being reproduced.

7. CRITICAL ANALYSIS / FINDINGS

The analysis above demonstrates that the existing legal system has three major failings, all of which need to be examined separately.

First, Section 15(2) of the Copyright Act of 1957 establishes a 50-copy limit for mass-produced items that are protected by copyright. This type of protection was conceived in 1957 to protect an individual designer against someone producing a mass-produced version of their design. This was a valid concern at the time, given how long copyright lasted, but today it gives no limit on how many copies can legally be made by a dupe manufacturer.

If a new law were created similar to the EU’s UCD regime then this problem would be solved without the need for formal registration and would not interfere with the current copyright protection offered to true artistic works.

Second, the “likelihood of confusion” test that governs passing off and trade dress cases does not match up with the reality of dupe culture. Dupe culture is based on consumers’ informed choices, not misleading consumers, when consumers purchase a dupe, they do so knowing that it is a derivative product, and they are making a rational economic decision. As a result, courts may need to create a harm-based analysis for trading practices that are vicious because of the unjust enrichment or misrepresentation of creative efforts, rather than relying solely on confusion-based analyses.

Third, a large enforcement gap exists between well-established luxury brands and independent or starting designers. For instance, the Sabyasachi-H&M dispute illustrates how even a significant designer could not navigate the current legal framework. Smaller designers, especially designers relying on traditional craft methods, face prohibitively expensive costs for design registration and trademark applications, as well as litigation. Current law is designed to provide commercial benefits to companies with in-house intellectual property departments, not to democratise protections for creative talent. Hence, the legislation must be drafted to remedy the gap in enforcement between larger luxury brands and newer designers as an explicit component of the legislation, rather than as an afterthought.

8. CONCLUSION

The legal standing of fashion dupes is based on many areas of law including copyright, design rights, trade mark law and consumer behaviour – none of which deal fully enough with this phenomenon. The fragmented nature of Indian fashion law, which is based around a threshold of 50 copies and a design registration system, allows for the widespread commercialisation and legal allowance of aesthetic copying at scale. Although both the US and the EU have flaws in their legal frameworks, they do provide adaptive mechanisms – the separability doctrine, trade dress litigation and unregistered design automatic protection which Indian law does not have the benefit of yet.

A way forward is to create two legislative initiatives:

(1) An unregistered design right to provide automatic short-term protection from the date of first disclosure; and

(2) recognition of trade dress as a separate cause of action with defined “burden of proof” requirements. Courts need to be willing to extend the passing-off doctrine to non-confusing, but commercially parasitic imitators. The fashion dupe is not a victimless transaction – it takes the creative labour of a designer without consent and without compensation. The law must be able to articulate this reality.

9. REFERENCE(S):

9.1 Primary Sources — Legislation

1. Agreement on Trade-Related Aspects of Intellectual Property Rights 1994 (TRIPS)
2. Copyright Act 1957
3. Copyright Act 1976 (US)
4. Designs Act 2000
5. Information Technology Act 2000
6. Lanham Act 1946 (US)
7. Council Regulation (EC) No. 6/2002 on Community Designs [2002] OJ L3/1
8. Regulation (EU) 2024/2822 on European Union Designs (recast)
9. Trade Marks Act 1999

9.2 Primary Sources — Case Law

1. Christian Louboutin SAS v Pawan Kumar CS(OS) 3525/2012 (Delhi High Court)
2. Jack Daniel’s Properties Inc v VIP Products LLC 599 US 140 (2023)
3. Lululemon Athletica Canada Inc v Costco Wholesale Corp No 2:25-cv-05864 (CD Cal, filed June 2025)
4. Rajesh Masrani v Tahiliani Design Pvt Ltd 2008 SCC OnLine Del 1344
5. Ritika Private Ltd v Biba Apparels Pvt Ltd 2016 SCC OnLine Del 2282
6. Star Athletica LLC v Varsity Brands Inc 580 US 405 (2017)
7. Two Pesos Inc v Taco Cabana Inc 505 US 763 (1992

9.3 Secondary Sources

1. Anand and Anand, ‘Snapshot: Intellectual Property for Fashion Goods in India’ (13 January 2026) https://www.anandandanand.com accessed 6 June 2026
2. Fashion Law Journal, ‘Dupes vs Counterfeits: The Trademark Dilemma and its Impact on Luxury Brands’ (19 August 2025) https://fashionlawjournal.com accessed 6 June 2026
3. Khurana and Khurana, ‘Fast Fashion and Intellectual Property: Where Does Originality End and Infringement Begin?’ (5 August 2025) https://www.khuranaandkhurana.com accessed 6 June 2026
4. Nixon Peabody LLP, ‘Trademark Tactics: Protecting Your Brand Amid Rising Legal Battles over Dupes’ (28 July 2025) https://www.nixonpeabody.com accessed 6 June 2026
5. NYU Journal of Intellectual Property & Entertainment Law, ‘Dupes’ https://jipel.law.nyu.edu accessed 6 June 2026
6. OECD/EUIPO, Global Trade in Counterfeit Goods and Free Trade Zones: Evidence from New Data (2021)
7. Record of Law, ‘Dupe Culture and the Limits of Intellectual Property Protection in India’ (16 April 2026) https://www.recordoflaw.in accessed 6 June 2026
8. Reed Smith LLP, ‘Always in Season: Dupes for Sale – Confusion Not Included’ (18 September 2025) https://www.reedsmith.com accessed 6 June 2026
9. Stanford Law School, Comparison of Intellectual Property Protections Available for Fashion Designs in the US and the EU (Working Paper No 58, 2020)
10. White & Case LLP, ‘Client Advisory – Trends in Dupes and Super-Fakes in Luxury Retail’ (2024) https://www.whitecase.com accessed 6 June 2026

^[1] Copyright Act 1957

^[2] Designs Act 2000

^[3]Trade Marks Act 1999

^[4] OECD/EUIPO, ‘Global Trade in Counterfeit Goods’, 2021, p 12

^[5] Trade Marks Act 1999, s 29 

^[6] Copyright Act 1957, s 63; Trade Marks Act 1999,  s 105

^[7] Designs Act 2000, s 2(d)

^[8] Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) 1994, Arts 25-26

^[9] Lanham Act 1946 (US), 15 USC §§ 1051–1141n

^[10] Copyright Act 1976 (US), 17 USC § 101

^[11] Council Regulation (EC) No 6/2002 on Community Designs [2002] OJ L3/1, art 11

^[12] Copyright Act 1957, s 15(2)

^[13] ibid  4

^[14] Trade Marks Act 1999, s 2(1)(zb)

^[15] Lanham Act 1946 (US), 15 USC § 1125(a); Two Pesos Inc v Taco Cabana Inc 505 US 763 (1992)

^[16] Lululemon Athletica Canada Inc v Costco Wholesale Corp No 2:25-cv-05864 (US District Court, Central District of California, filed June 2025)

^[17] Regulation (EU) 2024/2822 on European Union Designs (recast) [2024] OJ L, art 9

^[18] Stanford Law School, Comparison of IP Protections Available for Fashion Designs in the US and the EU (Working Paper No 58, 2020) https://law.stanford.edu accessed 6 June 2026.

^[19] Rajesh Masrani v Tahiliani Design Pvt Ltd 2008 SCC OnLine Del 1344

^[20] Copyright Act 1957, s 15(2); Designs Act 2000, s 11

^[21] Star Athletica LLC v Varsity Brands Inc 580 US 405 (2017)

^[22] ibid, Thomas J

^[23] Sabyasachi Mukherjee’s allegations against H&M India concerning alleged imitation of design elements (2023–2024); Copyright Act 1957, s 2(c), 15(2); Designs Act 2000, s 22