Authored By: Sofia Lamri
Middlesex University Dubai
ABSTRACT
With the emergence of fast fashion came the issue of the growing phenomenon of dupe culture and its implications for intellectual property protection within the luxury fashion industry. Whilst counterfeit goods are illegal and luxury brands can seek legal action against them; dupes represent a grey area. This begs the question of whether existing intellectual property laws can adequately protect luxury fashion brands against dupe products without granting exclusive rights over fashion aesthetics. Using doctrinal and analytical legal research methodologies, this article analyses relevant statutory frameworks in the United States, alongside key judicial decisions. Engaging with contemporary scholarly debates, the article finds that trademark and design protection laws \are limited in addressing look-alike products that avoid direct infringement. The article concludes that these limitations represent a deliberate balance between protecting luxury brands and preserving competition, innovation, and consumer choice within the fashion industry.
Keywords: Dupe Culture; Luxury Fashion Brands; Intellectual Property; Design Protection; Trademark Dilution; Luxury Fashion Law; Intellectual Property.
- INTRODUCTION
The rise of “dupe culture” has become one of the most significant challenges facing the luxury fashion industry in the digital age. Popularised through social media platforms such as TikTok and Instagram, fashion dupes are products designed to closely resemble high-end luxury goods while avoiding the direct reproduction of protected trademarks or logos.[1] Unlike counterfeit products, which unlawfully imitate branded goods and are generally prohibited under intellectual property law, dupes occupy a grey area.[2] Their growing popularity has sparked debate regarding the extent to which intellectual property law should protect the aesthetic and commercial value of luxury fashion products.
This issue highlights the tension between protecting brand investment and innovation on the one hand and preserving market competition and consumer choice on the other, which are two competing objectives of intellectual property law. Luxury fashion brands increasingly rely on trademark and design protection laws to safeguard their products from imitation. However, the legal framework often struggles to address look-alike products that replicate the overall appearance of luxury goods without creating direct consumer confusion. Consequently, dupe culture raises important questions regarding the adequacy of existing intellectual property protections and the limits of exclusive rights in the fashion industry.
This article examines the following research question: To what extent can intellectual property law protect luxury fashion brands against dupe products without granting them a monopoly over fashion aesthetics? Focusing primarily on trademark and design protection laws within the United States, this article analyses key judicial decisions and scholarly commentary relating to luxury brand protection and the rise of dupe culture on the internet. It first distinguishes dupes from counterfeit goods and outlines the legal framework governing luxury fashion, explores the challenges posed by dupe culture through an examination of different arguments posed by academics and finally, the article evaluates whether existing legal mechanisms strike an appropriate balance between protecting luxury brands and maintaining fair competition in the fashion market.
- BACKGROUND: TRADEMARK AND DESIGN PROTECTION LAWS
The rise of dupe culture has generated significant debate within fashion law regarding the adequacy of existing intellectual property protections for luxury brands. While counterfeit products are generally prohibited under intellectual property law because they unlawfully reproduce trademarks and are intended to deceive consumers as to the authenticity of goods, the legal stand on dupes is more ambiguous.[3] Unlike counterfeits, dupes do not replicate protected logos or trademarks, and instead, imitate the aesthetic, design, or overall appearance of luxury products while avoiding direct infringement of source-identifying marks.[4] As a result, dupes challenge the traditional boundaries of intellectual property law by exploiting similarities in appearance rather than engaging in outright deception.
The term “dupe,” derived from the word “duplicate,” has no universally accepted legal definition, however, within the fashion industry, it is typically used in reference to lower-priced products that closely resemble luxury goods.[5] Fast-fashion retailers and large discount retailers such as Shein and Walmart have frequently been associated with the sale of such products.[6] Furthermore, the popularity of dupes has been amplified by social media platforms, particularly TikTok, where consumers actively seek affordable alternatives to luxury items. [7]
In the United States, luxury brands primarily rely on trademark law to protect names, logos, symbols, and other source-identifying features.[8] These rights arise through common law use and are further strengthened through registration and enforcement mechanisms provided by the Lanham Act, 15 U.S.C. §§ 1051 et seq.[9] Protection for product designs may also be available through design patents under 35 U.S.C. § 171, which protects new, original, and ornamental designs for articles of manufacture.[10] However, compared to many other creative industries, fashion design receives relatively limited intellectual property protection, creating opportunities for imitation and the growth of the fast-fashion market.[11]
Academic opinion remains divided regarding whether stronger legal protections are desirable. Some scholars argue that dupes undermine brand integrity, dilute the value of luxury goods, and exploit legal gaps that existing trademark law is unable to address effectively.[12] Others, most notably Raustiala and Sprigman in their theory of the “piracy paradox,” contend that fashion’s relatively weak intellectual property protections encourage innovation by allowing trends to circulate rapidly throughout the market, thereby motivating designers to continually create new designs.[13] This debate forms the conceptual foundation of this article and raises the central question of whether stronger protection against dupes would safeguard luxury brands or improperly extend proprietary rights over fashion aesthetics.
- LEGAL ANALYSIS
Luxury fashion brands seeking protection against dupe products primarily rely on trademark and design protection laws.[14] In the United States, the Lanham Act protects trademarks that identify the source of goods and services, while design protection applies to the overall appearance of a product where that appearance has acquired distinctiveness and is non-functional.[15] However, the growing prevalence of dupe culture exposes the limitations of these legal mechanisms. Unlike counterfeit goods, which reproduce protected trademarks and are intended to deceive consumers, dupes often imitate the visual characteristics of luxury products while avoiding direct infringement.[16] As a result, luxury brands face significant challenges in establishing legal claims against manufacturers of look-alike products.
The tension between brand protection and market competition is evident in the case of Christian Louboutin S.A. v Yves Saint Laurent America Holding, Inc. where the United States Court of Appeals for the Second Circuit recognised that Louboutin’s red sole could function as a trademark when used in contrast with the remainder of the shoe.[17] This decision demonstrates a willingness to protect distinctive luxury brand identifiers beyond traditional logos and word marks. Nevertheless, the court stopped short of granting Louboutin exclusive rights over all red-soled shoes.[18] This reflects an important concern within intellectual property law: granting overly broad protection may restrict competition and prevent other designers from using common aesthetic features. The case therefore illustrates the difficulty of determining where legitimate brand protection ends and monopolisation of fashion design begins.
Furthermore, the rise of social media-driven dupe culture challenges the traditional rationale underpinning trademark protection. Trademark law has historically focused on preventing consumer confusion regarding the source, sponsorship, or affiliation of goods.[19] However, consumers purchasing dupe products are often fully aware that they are not purchasing authentic luxury items. A consumer seeking a handbag that resembles a Birkin bag at a fraction of the cost is unlikely to believe that the product originates from Hermès. Consequently, the central requirement of consumer confusion is frequently absent. Despite this, luxury brands continue to suffer potential harm through the dilution of exclusivity and prestige that form an essential component of their commercial value.[20]
This creates a significant doctrinal gap. Current intellectual property law effectively addresses counterfeiting and deceptive practices but is less capable of addressing imitation that deliberately avoids confusion while appropriating luxury aesthetics.[21] Some scholars argue that stronger protections are necessary because dupes free-ride on the reputation and investment of luxury brands.[22] Others contend that fashion has historically thrived on imitation and that broader protection would hinder competition, innovation, and consumer access to trends.[23] The latter position is particularly persuasive given the cyclical and derivative nature of fashion design. Granting exclusive rights over general aesthetic features could impede creative development and allow dominant luxury brands to exert excessive control over the market.
Ultimately, the limitations of trademark and design protection law may not represent a failure of the legal system but rather a deliberate balancing exercise. While luxury brands possess legitimate interests in protecting their commercial identity and reputation, intellectual property law must also safeguard competition and prevent the monopolisation of aesthetic concepts. The challenge posed by dupe culture demonstrates the difficulty of applying legal doctrines designed to prevent consumer deception to a marketplace increasingly driven by aspirational branding and visual association. Current law therefore provides only partial protection against dupes, reflecting a conscious attempt to balance the interests of luxury brands, competitors, and consumers.
- CASE LAW DISCUSSION
4.1 Christian Louboutin S.A. v Yves Saint Laurent America Holding, Inc.[24]
As discussed above, one of the most significant cases concerning luxury fashion trademarks is Christian Louboutin S.A. v Yves Saint Laurent America Holding, Inc. This dispute arose when Yves Saint Laurent released a monochromatic red shoe that featured a red sole, similar to the distinctive red-soled footwear associated with Christian Louboutin. Louboutin argued that the red sole had acquired trademark significance and that YSL’s use of the feature constituted trademark infringement.
The United States Court of Appeals for the Second Circuit held that Louboutin’s red sole could qualify for trademark protection when used in contrast with the remainder of the shoe. However, the court refused to grant exclusive rights over all red-soled shoes, finding that such protection would be excessively broad. This case established the principle that aesthetic features may function as trademarks where they have acquired distinctiveness, but protection remains limited by concerns regarding competition and functionality.
The decision demonstrates the courts’ willingness to protect certain luxury brand identifiers while simultaneously preventing luxury brands from monopolising basic design elements. It further highlights the tension between protecting brand value and preserving creative freedom within the fashion industry.
4.2 Qualitex Co. v Jacobson Products Co.[25]
In Qualitex Co. v Jacobson Products Co., the United States Supreme Court considered whether a single colour could be protected as a trademark. Qualitex had used a distinctive green-gold colour on its dry-cleaning press pads and sought to prevent competitors from using a similar colour scheme by registering it as a trademark. Jacobson Products began using a similar colour, prompting Qualitex to sue them for trade infringement. Initially, the Ninth Circuit Court held that a under the Lanham Act colour alone could not be registered as a trademark. Consequently, Qualitex appealed to the U.S Supreme Court.
In their ruling, the Supreme Court held that colour alone may qualify for trademark protection provided it has acquired secondary meaning and serves to identify the source of goods. However, the Court emphasised that protection would not extend to colours that are functional or place competitors at a significant disadvantage.
This decision recognised that non-traditional brand features can serve as trademarks, and for luxury fashion brands, this case provides legal support for protecting distinctive aesthetic elements. At the same time, the Court’s emphasis on functionality reflects the broader concern that trademark law should not grant exclusive rights over features that competitors may legitimately need to use.
4.3 Hermès International v Rothschild[26]
The dispute in Hermès International v Rothschild concerned the defendant’s creation and sale of “MetaBirkin” non-fungible tokens (NFTs), which depicted digital images inspired by Hermès’ famous Birkin handbag. Hermès owns trademarks in the name “Hermès” and “Birkin” as well as rights in the handbag’s design. Therefore, they argued that the project unlawfully exploited the reputation and goodwill associated with its luxury brand.
A federal jury found in favour of Hermès, concluding that the MetaBirkin NFTs infringed Hermès’ trademark rights and diluted the distinctiveness of the Birkin mark. This decision reinforces the principle that trademark protection extends beyond physical products and can protect the commercial identity and reputation of luxury brands in new digital environments.
Although the case did not involve traditional fashion dupes, it illustrates the growing recognition of luxury brand value as a protectable commercial asset. The judgment suggests that courts are increasingly willing to protect luxury brands against attempts to capitalise on their reputation. Nevertheless, extending such protection too far may risk granting luxury brands excessive control over cultural and aesthetic references associated with their products.
- CRITICAL ANALYSIS AND DISCUSSION
The sources used in this article reveal a significant gap within the existing intellectual property framework. Trademark and design protection laws were developed primarily to prevent consumer confusion and protect source-identifying features. However, dupe culture presents a challenge that these doctrines were not originally designed to address. Consumers purchasing dupe products are frequently aware that they are not purchasing authentic luxury goods, therefore, the traditional rationale of preventing deception is often absent. As a result, luxury brands may experience economic and reputational harm without being able to satisfy the legal requirements necessary to establish infringement.
The case law examined in this article demonstrates a clear judicial trend towards recognising non-traditional forms of trademark protection. Decisions such as Qualitex and Louboutin indicate that courts are willing to protect colours, product features and other distinctive aesthetic elements where they function as indicators of commercial origin. Similarly, the judgment in Hermès v Rothschild reflects a growing willingness to safeguard the reputation and goodwill associated with luxury brands. Nevertheless, these cases also reveal a consistent reluctance to extend protection so far that it restricts legitimate competition. Therefore, courts appear committed to preserving a distinction between protecting brand identity and granting ownership over fashion aesthetics themselves.
From a policy perspective, expanding intellectual property protection against dupes presents both advantages and risks. Stronger protections may help luxury brands preserve exclusivity, maintain brand value and protect investments in design and marketing. However, broader rights could also reduce competition, limit consumer choice and create barriers for emerging designers seeking to participate in the fashion market. Given the inherently iterative nature of fashion, excessive protection may hinder rather than promote creativity and innovation.
The findings of this article suggest that the current limitations of trademark and design protection should not necessarily be viewed as shortcomings. Rather, they represent a deliberate balancing mechanism intended to protect commercial goodwill while preventing the monopolisation of aesthetic features. Although dupe culture exposes weaknesses in existing legal frameworks, any future reforms must carefully balance the interests of luxury brands, competitors and consumers.
- CONCLUSION
While intellectual property law is effective in addressing counterfeiting and preventing consumer confusion, it is less capable of regulating products that imitate the aesthetic appeal of luxury goods without reproducing protected trademarks or misleading consumers as to their origin.
Moreover, whilst courts are increasingly recognising the commercial value of non-traditional brand identifiers, as evidenced by decisions such as Qualitex, Louboutin and Hermès v Rothschild, the judicial reluctance to extend protection beyond distinctive source-identifying features reflects an important policy objective: preventing luxury brands from acquiring exclusive rights over general design concepts, colours and aesthetic trends. Consequently, the current limitations of trademark and design protection law should be understood not as defects, but as safeguards that preserve competition and creativity within the fashion industry.
Therefore, whilst intellectual property law can protect luxury fashion brands against certain forms of imitation, it cannot and should not provide absolute protection against dupes where doing so would effectively create monopolies over fashion aesthetics. Future legal reform should therefore focus on clarifying the boundaries of trademark and design protection rather than expanding exclusive rights in ways that may undermine innovation, competition and consumer choice.
Bibliography
Primary Sources
US Primary Legislation:
15 U.S.C. § 1051 et seq. (Lanham Act)
35 U.S.C. § 171 (Patents for designs)
US Case Law:
Christian Louboutin S.A. v. Yves Saint Laurent America Inc., No. 11-3303 (2d Cir. 2012)
Hermes International v. Rothschild No. 22-CV-384-JSR, 2023 WL 1458126 (S.D.N.Y. Feb. 2, 2023)
Qualitex Co. v. Jacobson Products Co. 514 U.S. 159 (1995)
Secondary Sources
Textbooks:
Butcher K, Davis K, Hemmer J & Rubel J, Morgan, Lewis & Bockius LLP, ‘United States’, in Fabrizio Jacobacci, Jacobacci & Associati (eds), Luxury Law: Jurisdictional Comparisons 2016 (2016) 207
Journal Articles:
J Roberts A, ‘Dupes’ (2025) 14(2) NYU Journal of Intellectual Property & Entertainment Law 94
Kim W and Ha-Brookshire J. E., ‘What makes it a dupe? Exploring consumer understanding of legally copied products in the fashion industry’ (2026) 13 Fashion and Textiles
Nolan M, ‘How Intellectual Property Laws Allow for Fashion Dupes’ [2023] SLU Law Journal Online 124
Raustiala K & Sprigman C, ‘The Piracy Paradox: Innovation and Intellectual Property in Fashion Design’ (2006) 92(8) Virginia Law Review 1688
Theoharidis A, ‘The Devil Wears Dupes: Legal Implications of “Dupe Culture” in the Fashion Industry and How Trademark Law Should Adapt’ (2025) 9(1) The Business, Entrepreneurship & Tax Law Review 213
[1] Alexandra J Roberts, ‘Dupes’ (2025) 14(2) NYU Journal of Intellectual Property & Entertainment Law 94.
[2] Miranda Nolan, ‘How Intellectual Property Laws Allow for Fashion Dupes’ [2023] SLU Law Journal Online 124.
[3] Ibid.
[4] Ibid.
[5] Roberts (n1).
[6] Ibid.
[7] Ibid.
[8] Karen Butcher, Ken Davis, John Hemmer & Jordana Rubel, Morgan, Lewis & Bockius LLP, ‘United States’, in Fabrizio Jacobacci, Jacobacci & Associati (eds), Luxury Law: Jurisdictional Comparisons 2016 (2016) 207.
[9] Ibid.
[10] Ibid 213.
[11] Nolan (n2).
[12] Alexix Theoharidis, ‘The Devil Wears Dupes: Legal Implications of “Dupe Culture” in the Fashion Industry and How Trademark Law Should Adapt’ (2025) 9(1) The Business, Entrepreneurship & Tax Law Review 213.
[13] Kal Raustiala & Christopher Sprigman, ‘The Piracy Paradox: Innovation and Intellectual Property in Fashion Design’ (2006) 92(8) Virginia Law Review 1688.
[14] Butcher (n8).
[15] Ibid.
[16] Nolan (n 2).
[17] Christian Louboutin S.A. v. Yves Saint Laurent America Inc., No. 11-3303 (2d Cir. 2012).
[18] Ibid.
[19] William Kim and Jung E. Ha-Brookshire, ‘What makes it a dupe? Exploring consumer understanding of legally copied products in the fashion industry’ (2026) 13 Fashion and Textiles.
[20] Theoharidis (n 12).
[21] Nolan (n 2).
[22] Theoharidis (n 12).
[23] Nolan (n 2).
[24] Christian Louboutin S.A (n 17).
[25] Qualitex Co. v. Jacobson Products Co. 514 U.S. 159 (1995).
[26] Hermes International v. Rothschild No. 22-CV-384-JSR, 2023 WL 1458126 (S.D.N.Y. Feb. 2, 2023).
