The impact that digitalisation is having on our habits and forms of consumption is, at the same time, posing new legal challenges in the face of disruptive marketing and advertising strategies.
DUPE is an informal English abbreviation derived from the word duplicate, referring to the growing trend in recent years on social networks, driven by influencers to promote products -mainly in the perfumery, cosmetics, fashion or electronics sectors- that offer an equivalent in characteristics or performance to branded products, but at a much lower price.
One of the recent examples with the greatest media impact has been the case of the “Wirkin”: a handbag from the WALMART distribution chain costing $80 that resembles the iconic Birkin by HERMÈS, the flagship piece of the French luxury house, whose price starts at more than $10,000.
Many of these practices move along the blurred line of legality separating imitation from inspiration: the former, prohibited in principle by the limits of intellectual property rights and unfair competition; the latter, allowed in a market economy as a basic premise for economic progress.
We are faced with what another English neologism identifies as fauxthenticity, which is emerging as an attribute of viral and even positive trends. It claims the right to enjoy alternatives to luxury products or reference brands at much cheaper prices, without considering whether such access also implies violations of the intellectual property rights of third parties. This raises broader concerns about the sociological evolution of our times, such as whether access to these products should be considered a right, beyond the buyer’s economic capacity, rather than a mere market option.
The zone of vagueness in which these activities may fall is determined, in many cases, not so much by the objective characteristics of the product as by the means or techniques of promotion used by influencers to the benefit of the manufacturers or distributors of DUPES.
This is because, in the most problematic cases, the manufacturers of these products are already refraining from directly replicating brand logos, packaging, or designs that could confuse consumers as to the origin of the product. Everything is confined to a more subtle terrain — that of resemblance or evocation of the original product — which is then amplified by influencers on networks such as TikTok (e.g. @mykaelanogueira) or Instagram (e.g. @dupethat), where they present these products emphasising their equivalence in effect and notable price reduction.
To further complicate the legal approach to the issue, the activity carried out by influencers may be of a purely commercial nature — which entails specific obligations such as registration and compliance as entrepreneurs — or merely personal, ultimately aimed at indirectly promoting their persona without receiving any form of remuneration, discount, or gift in kind from the manufacturer of the DUPE.
The legal response to this reality, especially in cases where the recreation of the product does not directly infringe the industrial property rights of the original manufacturer, is complex and requires multidimensional treatment. In fact, most precedents that have reached the courts relate to breaches of advertising regulations or unfair competition rules by influencers, due to misleading or covert advertising practices, failing to clearly inform audiences that the communication reflects less of an objective opinion and more of a promotional intention.
Within the scope of industrial property protection, each act must be assessed individually, considering the circumstances of the influencer’s and/or manufacturer’s activity. The monopoly of the right holder is not limited to counterfeiting activities: parasitic behaviour or the unfair advantage taken of a trademark’s reputation, even in the absence of consumer confusion, also falls within the scope of trademark law, as the CJEU held in L’Oréal v. Bellure (C-487/07), confirming that protection likewise extends to comparative advertising practices that fail to meet the legality criteria.
Article by Joan Salvà.
