“Dupe culture” is not just a trend. It is reshaping how brands must think about enforcement.
Last week at the ESCAPADES IP Conference, organized by ESCA Legal, we had the opportunity to explore this shift during the panel, Fashioning Enforcement: Guarding Design in the Age of Dupes, alongside Megan Bannigan, Christina Mitropoulos, and David Eshmoili, moderated by FRANCESCA WITZBURG®.
We are grateful for the opportunity to contribute the investigative perspective and to collaborate with these industry thought leaders.
The takeaway was clear: effective enforcement today starts with coordinated strategy and well-timed evidence.
Where the Law Struggles to Keep Up
One of the central challenges is the legal distinction between dupes and counterfeits.
In the U.S., dupes often fall into a gray area. If a consumer knowingly purchases a “dupe,” the lack of confusion can weaken traditional trademark claims. That reality is forcing brands to think more creatively, leveraging other tools like:
- False advertising claims when marketing crosses the line
- Dilution claims, particularly under state statutes (TIP: Some states, including New York, do not require fame.)
- Material alteration arguments in upcycled goods
At the same time, inconsistent articulation of trade dress can create risk. Enforcement efforts must be aligned from the start. When definitions shift across actions, the consequences can be significant, including loss of rights altogether.
For those looking to see how this plays out in practice, MZ Wallace Inc. v. Fuller is one to check out. As the non-attorney on the panel, this was a fascinating example to hear discussed.
Social Media Changed the Game
Platforms are no longer just marketing channels. They have become full-scale marketplaces, rapidly growing and evolving to consumer demand.
Influencer-driven “dupe economy” is accelerating the spread of knockoffs, often using customer acquisition approaches that closely mirror those of legitimate brands. Sellers adapt quickly:
- Shifting sales activity to off-hours in an effort to evade enforcement
- Moving conversations into comments, DMs, and private channels
- Influencer-driven “dupe the dupe” content, where creators showcase alternatives to already affordable products, creating more noise and influencing consumer behavior
- Instances where physical products are sent directly to influencers for promotion, sometimes paired with discount codes or giveaways, creating a networked approach to driving demand across platforms
- Offering sourcing through concepts like “Canal Street” personal shoppers, taking custom orders and fulfilling them directly for buyers
- What appears to be a fragmented marketplace is often more consolidated than it seems, with multiple sellers potentially tied to a limited number of underlying supply networks
What Enforcement Looks Like Now
The discussion emphasized coordinated strategy over reactive action, with a balance between litigation targets, C&D targets, and takedown-only targets.
In a landscape where activity can be both highly visible and deeply networked, enforcement cannot be one-size-fits-all. It requires deliberate selection and alignment across teams.
Regardless of the approach, effective programs have a strategic foundation in place before infringement occurs:
- Define protectable elements early with design and marketing teams
- Align on consistent trade dress language across all actions
- Use “look for” advertising to support secondary meaning
- Ensure internal alignment so enforcement positions remain consistent across platforms, correspondence, and litigation
From there, enforcement becomes a matter of prioritization, not volume. Each target should be evaluated based on:
- Scale of activity and reach
- Potential for recovery or disruption
- Relationship to broader supply networks
- Overall business and brand impact
Why Evidence Is the Deciding Factor
In this environment, evidence drives the outcome.
A viable case increasingly depends on documenting the consumer’s journey, particularly as content is designed to move quickly or disappear entirely.
Not every case demands a buy, but every case demands strong documentation.
- Initial exposure to the listing
- Capture of how the product is presented (images, descriptions, claims)
- Preservation of conversations, comments, and engagement where relevant
- Purchase and payment confirmation, where a buy is necessary
- Shipping, delivery, and receipt
- Differences between what was advertised and what was received
Given how sellers operate across platforms, evidence must often capture not just the transaction, but the surrounding context in which it occurs.
Undercover engagement, when appropriate, can extend that value by:
- Revealing supply chain connections behind multiple sellers
- Providing insight into pricing, volume, and sourcing
- Identifying whether activity is isolated or part of a broader network
Because once enforcement begins, content often disappears.
The bottom line: protecting design today requires more than identifying infringement. It requires a coordinated strategy supported by precise, well-timed evidence that can withstand the speed at which this landscape is evolving.
