1. The phenomenon
The term “dupe” (short for “duplicate”) refers to products that deliberately reproduce the aesthetic features of luxury or highly renowned products – including handbags, footwear, fragrances, cosmetics and furniture – without reproducing their word or figurative trade marks. Unlike traditional counterfeiting, a dupe does not mislead consumers as to the origin of the product: it is purchased precisely as a declared imitation and is often promoted on social media through explicit references to the original product (“dupe of…”, “alternative to…”).
The phenomenon has grown exponentially as a result of three factors: the virality of content on TikTok and Instagram (the hashtag #dupe has accumulated billions of views), ultra-low-cost e-commerce platforms enabling extremely rapid production cycles, and, more recently, generative artificial intelligence tools, which make it possible to analyse and reproduce a designer’s lines, patterns and distinctive stylistic features on an industrial scale and within significantly shorter timeframes.
2. Why a dupe is not (necessarily) lawful
The absence of an authorised reproduction of the brand’s logo does not automatically place a dupe outside the scope of unlawful conduct. Italian and EU law provide several layers of protection that may apply to this phenomenon.
2.1 Registered and unregistered design
A registered Community design (Council Regulation (EC) No. 6/2002) protects the appearance of a product – including its lines, contours, colours, shape and texture – for renewable five-year terms, up to a maximum of twenty-five years. Infringement occurs where the dupe does not produce on the informed user a different overall impression from that produced by the registered design: identity is not required; substantial similarity is sufficient. The same Regulation also protects unregistered designs for three years from the date on which they were first made available to the public within the European Union, although such protection is limited to intentional copying. This is a particularly useful tool in the fashion industry, where collections are renewed at a pace that is incompatible with systematic registration.
2.2 Reputed trade marks and shape marks
Article 20(1)(c) of the Italian Industrial Property Code (and Article 9 of Regulation (EU) 2017/1001 in relation to EU trade marks) protects a trade mark with a reputation even in the absence of a likelihood of confusion, where the use of a third party’s sign takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the trade mark. This is the protection afforded against free-riding and dilution: precisely the situation typically associated with dupes, which monetise the attractiveness and reputation built by another party. In the well-known case of L’Oréal v Bellure (C-487/07), the Court of Justice clarified that taking unfair advantage does not require either confusion or proof of actual detriment: it is sufficient for a third party to ride on the coat-tails of a mark with a reputation in order to benefit from its power of attraction without paying any financial compensation. Moreover, where the shape of the product itself or one of its elements (such as a buckle, pattern or sole) is registered as a shape mark or has acquired distinctive character through use, its reproduction may constitute trade mark infringement as such.
2.3. Copyright
Industrial design works displaying a sufficient degree of creativity may qualify for copyright protection under Article 2(10) of Law No. 633/1941. European case law, in particular Cofemel(C-683/17), has curtailed additional requirements imposed under national law by making protection dependent solely on the originality of the work. For iconic pieces of design and fashion, this provides an additional layer of protection, with a term of protection significantly longer than that afforded by registered design rights.
2.4. Unfair competition
Article 2598 of the Italian Civil Code serves as a residual safeguard within the system. In particular, the following forms of conduct are relevant: slavish imitation (No. 1), where the close reproduction of the distinctive features of another party’s product creates a likelihood of confusion; misappropriation of another party’s merits (No. 2), where the dupe is marketed by expressly referring to the original product (“equivalent to…”, “same effect as…”), a practice frequently found in social-media communications concerning dupes; and the general clause concerning conduct contrary to the principles of professional fairness (No. 3), which may capture systematic parasitic behaviour, namely the continuing exploitation of another party’s initiatives and investments. Unfair competition may also apply where registered rights are unavailable or have expired and is therefore often decisive in look-alike cases.
2.5. The role of marketing communications: influencers and platforms
One aspect is often overlooked: those who promote dupes may also incur liability. Explicit references to the original brand in promotional content may constitute use of a third party’s trade mark in a manner inconsistent with fair commercial practices, unlawful comparative advertising, or an unfair commercial practice. Platforms, for their part, are subject to the notice-and-action obligations under the Digital Services Act (Regulation (EU) 2022/2065), which has strengthened the tools available to rights holders to seek the removal of unlawful content and listings.
3. Enforcement tools
An effective strategy for combating dupes operates at several levels, to be calibrated according to the value of the imitated product and the scale of the phenomenon.
Prevention. Building a strong portfolio of rights: registering designs for key products, filing for shape marks and pattern marks where possible, documenting the dates on which collections are disclosed (which is useful for unregistered design protection), and maintaining records of investments and evidence of reputation.
Monitoring. Systematic monitoring of marketplaces, social media and search engines, now supported by AI-based brand-protection tools capable of identifying imitations even in the absence of textual references to the brand.
Out-of-court enforcement. Targeted cease-and-desist letters, notices submitted to platforms through DSA channels and marketplace protection programmes, and requests for de-indexing. In most cases, the scale of the phenomenon makes it necessary to prioritise these tools, which are faster and more scalable.
Judicial enforcement. In the most significant cases: description and seizure measures (Articles 129-130 of the Italian Industrial Property Code), interim injunctive relief backed by a penalty, and proceedings on the merits for trademark/design infringement and unfair competition seeking damages, including the disgorgement of profits (Article 125 of the Italian Industrial Property Code). Customs supervision (Regulation (EU) No. 608/2013) should also be considered in relation to import flows.
4. Conclusions
Dupes thrive in an area that is only apparently a grey zone. The tools for responding to them exist and are numerous; what makes the difference is the proactive establishment of a robust rights portfolio and a selective enforcement strategy that focuses judicial action on the cases with the greatest impact, while managing the remaining volume through out-of-court and technology-driven tools. For brands, protecting their creative assets is not merely a legal choice: it is a positioning strategy.
