The Rise of the Dupe Influencer

Authored By: Sydney Fenton, J.D.

Background

What is a Dupe Influencer?

 

A growing problem across social media platforms is the rise of the Dupe Influencer. Dupe influencers are influencers who use their social media accounts to promote fakes of sought-after designer products.[1] The term dupe essentially refers to commonly legal products inspired by designer products, although there is a possibility for copyright or trademark infringement. On the other hand, counterfeit is a technical term for the use of unauthorized trademarks that are effectively identical to the original.[2] However, dupe influencers mostly share information about counterfeits, and the term dupe has been used on social media interchangeably for the term counterfeit.[3] Dupe influencers generate millions of likes, views, and shares, by advertising counterfeit products on Instagram, YouTube, and TikTok. These influencers represent themselves as online resources for followers to find fakes, and they legitimize the sale of illegal items. Videos on where to find dupes have become an entire genre on TikTok, and many young consumers seek out these influencers to buy counterfeits.[4]

A 2019 report from the International Trademark Association, which polled 1250 Gen- Z Americans, found that 71% had purchased a counterfeit good in the previous year:[5] the most popular type of fakes being apparel and footwear. The study also found that 73% said the reason for buying counterfeit items is because they cannot afford the lifestyle they want.[6] Gen-Z and young millennials are part of the social media generation, which is focused on presenting a certain image to others. Television shows like Keeping up with the Kardashians, plus followers having an inside look into celebrity and influencers’ lives, has probably contributed to Gen Z desiring this lifestyle. Also, with Gen Z being the most photographed generation ever, they need to buy inexpensive items for their ever-changing outfits, a necessity to keep up with their social media posts.[7] Additionally, while it used to be cool to wear expensive brands, it is now cool to wear dupes; Gen Z is more interested in being smart by getting the look of an expensive brand for a fraction of the price.[8] It is a new phenomenon where the sellers and influencers are open about counterfeiting, ignoring its illegality and, in fact, bragging about it.[9] Unfortunately, it likely has only gotten worse since the 2019 report with the growth of TikTok and the rise of dupe influencers.

Analysis

When Dupe Influencing is Harmful

 

Dupe influencers are changing the perception of counterfeits as being trendy, cool, and not harmful. With these posts being directed at impressionable users, it creates a culture of dishonesty, dis-ingenuity, and disrespect for brands that put their goodwill into their design and constructing quality goods.[10]

However, the harmful consequences of this type of advertisement are numerous. Dupe influencers are putting their followers at risk by exposing them to inauthentic and possibly unsafe products, as well as connecting them with cybercriminals who have been known to steal personal information such as payment details.[11] Additionally, the products may not appear as advertised, leading to financial harm to consumers.

Likewise, designer brands suffer reputational harm when counterfeit products are passed off as genuine since counterfeits are made of substandard materials and not manufactured or approved by the brand.[12] Designer brands authorize certain products to be sold through carefully selected high-end prestigious stores to maintain the brand’s prestige.[13] The loss of the ability to identify counterfeit goods and control the quality of their legitimate products leads to substantial harm for designer brands.[14]

The Legal Ramifications of Dupe Influencers

 

One of the most high-profile lawsuits regarding dupe influencers began in the Fall of 2020. Amazon sued two dupe influencers and about a dozen Amazon third-party sellers for trying to sell fakes under the guise of generic handbags, belts, sunglasses, and wallets. The complaint states they are in trouble for the “unlawful and expressly prohibited advertisement, promotion, and/or sale of counterfeit luxury products on Amazon.com” in violation of Amazon’s policies and federal and state law.[15]  Specifically, the influencers “engaged in a sophisticated campaign of false advertising” with Amazon Marketplace sellers to evade Amazon’s anti-counterfeiting protections.[16] The influencers sold counterfeit luxury items, from Gucci belts and Dior handbags to Louis Vuitton accessories, on Instagram, Facebook, and TikTok.[17]

The case has recently reached a settlement, and while the details are confidential, the influencers are prohibited from “marketing, advertising, linking to, promoting or selling any products on Amazon.”[18] The dupe influencers will also be responsible for monetary damages that Amazon plans to donate to various non-profit organizations, including an anti-counterfeiting initiative of the International Trademark Association.[19]

Since TikTok is the platform of choice for most dupe influencers, TikTok could be liable, although it is unlikely. [20] In Tiffany (NJ) Inc. v. EBay Inc., the court ruled that eBay was not liable for either direct or contributory trademark infringement for selling counterfeit Tiffany products on its site.[21] This decision essentially places the burden on brands, rather than online retailers, or in this case, social media platforms, to police for counterfeit items. Unfortunately, while brands are the hardest hit by dupe influencers as it is their trademarks being infringed and diluted, it is difficult and often not worth it for brands to act because being litigious can create negative press for the brand.[22]

Moreover, suppose dupe influencers are directing followers to the sales of dupes on TikTok. In that case, the dupe influencers could also be liable, especially if these dupe influencers have an affiliate relationship with a seller. Still, even if they do not have an affiliate relationship with a seller, these individual dupe influencers can be liable for profiting off growing their TikTok pages; however, similarly to the possibility of TikTok being liable, it is also unlikely.[23]

Conclusion

The Future of Dupe Influencers

 

While designer products are not going away, a way brands can change the trajectory of this trend is to cater to the values of Gen Z. Gen Z values inclusivity and sustainability, and designer brands typically do not symbolize these values. Therefore, it may be in a brand’s best interest to scale down and sell lower-priced items or partner with other companies that cater to Gen Z consumers. For example, the company Moet Hennesy Louis Vuitton (LVMH), the owner of Dior, Givenchy, Stella McCartney, and a handful of other designer brands has invested in streetwear brand Madhappy.[24]

Another way to appeal to Gen-Z is to create long-lasting high-end goods rather than trendy products. Gen- Z is more interested in spending money on something timeless that one day will be vintage rather than trendy items that will depreciate.[25] Furthermore, brands can enhance their loyalty programs and reward individuals who are loyal to the brand. Brands can also use marketing that stresses the values of authenticity and the importance of supporting the designer and original creators to entice these young consumers to buy genuine quality originals.[26]

Nonetheless, the responsibility is also on the platforms to clean up their sites and on influencers and consumers to raise awareness of the negative impacts of counterfeits. Hopefully, social media platforms can look to Amazon as an example of how to litigiously attack the sale of counterfeits on their platforms. Amazon has initiated a growing number of trademark infringement suits for selling counterfeits on its site to cut down the sale of fakes. While Amazon is seeking legal and equitable remedies, the headline-making cases also create awareness of its efforts to rid its site of fakes leading to positive press for the company.[27]

Furthermore, the American Apparel & Footwear Association (AAFA) recently released a post offering suggestions of what platforms need to do to stop the spread of counterfeits.[28] The AAFA post first discusses the community guidelines that social media platforms have that bar illegal activity, such as the sale of counterfeit products on their platforms. Yet, these guidelines are rarely enforced, and platforms need to take proactive measures against advertisements of dupes.[29] Another action social media platforms can take is to block hashtags related to dupes; popular ones include #designerdupes and #designerreplicas. These hashtags, among others, are clearly being used to promote counterfeit products, and platforms must act against this illegal activity.[30] On TikTok alone, hashtags related to counterfeits have over 100 million views.[31] As with everything, when one hashtag is blocked, new hashtags will follow. Therefore, it is the responsibility of the platforms to constantly search for and regulate the use of hashtags related to the selling of counterfeits.[32]

Platforms also need to terminate the accounts of dupe influencers, particularly repeat offenders. Once they remove the accounts, the platforms also need to establish a mechanism to ensure that these dupe influencers are not making new accounts under a new profile after they are terminated.[33] Additionally, most social media platforms have a “For You” page that guides users to content that the platform’s algorithm believes the user would enjoy. It is the responsibility of the platforms not to promote dupe influencers on the “For You” page, as TikTok has been known to do.[34]

It is likewise the responsibility of influencers and consumers to be aware of the dangers of counterfeits. Dupe influencers are not going to disappear anytime soon so, the least they can do to protect their followers is to explain the associated risks of purchasing counterfeit products. On the other hand, consumers must be aware of the harmful consequences of buying counterfeits. Calling out influencers for posting counterfeit content is one way to bring awareness. Another way is through other influencers sharing content that warns their followers of the dangers of counterfeits, which many have already begun to do. However, this is not enough, and there needs to be more systematic change and awareness of the harmful effects of dupe influencers.[35]

 

[1] Christina Mitropoulos, Op-Ed: A Growing Problem on Social Media? The Rise of the “Dupe Influencer”, The Fashion Law (May 11. 2021), https://www.thefashionlaw.com/op-ed-a-growing-problem-on-social-media-the-rise-of-the-dupe-influencer/.

[2] Megan Graham, TikTok teens are obsessed with fake luxury products, CNBC (March 1, 2020 9:16 AM), https://www.cnbc.com/2020/02/29/tiktok-teens-are-obsessed-with-fake-luxury-products.html.

[3] A Hot Genre of Videos on TikTok: Those Dedicated to Showcasing Luxury Fakes, The Fashion Law (March 2, 2020), https://www.thefashionlaw.com/a-hot-genre-of-videos-on-tiktok-those-dedicated-to-finding-low-cost-luxury-fakes/.

[4] See id.

[5] Id. 

[6] Id.

[7] See Graham, supra note 2.

[8] Id.

[9] Bruno Klumpp, Dupe Culture: How to Protect Your Brand, Multi Channel Merchant (Feb. 25, 2021), https://multichannelmerchant.com/blog/dupe-culture-how-to-protect-your-brand/.

[10] Id.

[11] See Mitropoulos, supra note 1.

[12] See Chanel, INC., v. The RealReal, INC., 499 F.Supp.3d 422, 447 (2020) (citing FAC ¶ 61).

[13] See id. at 429-430 (citing FAC ¶ 24).

[14] See id. at 448.

[15] Amazon Sues Influencers, Marketplace Sellers Over Alleged Counterfeit Scheme, The Fashion Law (November 12, 2020), https://www.thefashionlaw.com/amazon-sues-influencers-marketplace-sellers-over-alleged-counterfeit-scheme/

[16] Id.

[17] See id.

[18] Amazon Settles Suit Against Social Media Influencers for Promoting Counterfeit Goods, The Fashion Law (Sept. 30, 2021), https://www.thefashionlaw.com/amazon-settles-suit-against-social-media-influencers-for-promoting-counterfeit-goods/

[19] Id.

[20] See Graham, supra note 2.

[21] Tiffany (NJ), Inc., v. eBay, Inc., 600 F.3d 93 (2d Cir. April 1, 2010).

[22] Graham, supra note 2.

[23] Id.

[24] Graham, supra note 2.

[25] ‘Dupe culture’ grows on TikTok; why this helps counterfeiters and harms brands, World Trademark Review (Nov. 5, 2020), https://www.worldtrademarkreview.com/anti-counterfeiting/dupe-culture-grows-tiktok-why-helps-counterfeiters-and-harms-brands.

[26] Klumpp, Supra note 9.

[27] Supra note 18.

[28] Mitropoulos, supra note 1.

[29] See id.

[30] Id.

[31] Supra note 25.

[32] Mitropoulos, supra note 1.

[33] See id.

[34] See supra note 25.

[35] See Mitropoulos, supra note 1.