Faking It Won’t Help You Make It: The Perils of Promoting Counterfeits on Social Media
The rise of dupes and counterfeits in influencer marketing highlights the need for transparency and vigilance. As companies like Amazon and Nike aggressively pursue legal action, influencers and brands must prioritize ethical practices to protect their reputations and avoid legal pitfalls. This ongoing issue underscores the importance of education, regulation, and due diligence in navigating the complex landscape of modern marketing. The Darnell sisters’ recent Christmas hauls, detailed in their viral posts, have sparked a heated online discourse about counterfeit luxury goods. Kylan and Izzy Darnell showcased a range of high-end items, with some observers alleging that certain products were counterfeit. In a now-deleted response, Kylan Darnell admitting to mixing counterfeit items in with original branded luxury goods. Kylan and her sister Izzy have collectively amassed almost 2 million followers by creating lifestyle videos featuring designer goods. The recent controversy has shed light on the growing issue of influencers attempting to pass off fake luxury items as genuine, raising ethical and legal concerns while underscoring the role of social media in promoting dupes and counterfeits. Influencers and the Rise of Dupes While influencers often share “dupes”—affordable alternatives to designer products—a report by the American Apparel & Footwear Association (AAFA) highlights the fine line between dupes and counterfeits. Unlike dupes, which are inspired by but do not copy a product outright, counterfeits are illegal replicas intended to deceive consumers. This distinction has serious legal and ethical implications for influencers who fail to disclose whether an item is a dupe, counterfeit, or authentic. The FTC and Disclosure Requirements The Federal Trade Commission (FTC) has issued guidance to ensure transparency in influencer marketing. Under Section 5(a) of the FTC Act, “unfair or deceptive acts or practices” are unlawful. This includes failing to disclose brand relationships, discounts, or affiliate links. Influencers promoting goods—whether authentic, dupes, or counterfeit—must make these relationships clear to avoid misleading their audiences. The FTC defines deceptive practices as those involving material omissions or misrepresentations that mislead consumers acting reasonably. Legal Implications of Selling or Promoting Counterfeit Items Promoting or purchasing counterfeit items can have serious legal, financial, and reputational consequences as follows: The majority of all counterfeit products seized each year are apparel and accessories, most coming into the United States from China. Engaging in the sale or promotion of counterfeit goods may classify an individual as intentionally trafficking counterfeit goods under U.S. law. Importers of counterfeit goods may face civil penalties if their counterfeit goods are seized by the CBP. Under 19 C.F.R. §133.27 outlines civil penalties no greater than the value of the authentic merchandise for a first offense and twice the value for subsequent offences. The Trademark Counterfeiting Act also prohibits the sale of counterfeit goods. Under this Act, individuals or companies who intentionally traffic in counterfeit goods could face fines and imprisonment. The legal and financial risks associated with the sale of counterfeit goods underscore the importance of compliance with federal laws and vigilance in preventing involvement in the counterfeit goods market. High-Profile Legal Cases Recent lawsuits underscore the risks influencers face when promoting counterfeit goods: 1. Nike vs. Eben Fox: Nike accused Fox of working with retailer Pandabuy to market counterfeit shoes, alleging trademark infringement. The case, filed in Florida, highlights the dangers of affiliate marketing programs promoting counterfeit goods. 2. Amazon’s Aggressive Litigation: In a 2020 lawsuit, Amazon sued influencers and sellers promoting counterfeit luxury goods. These cases, some of which settled in 2021, involved tactics like “hidden links” directing followers to counterfeit listings disguised as generic products. Additional lawsuits filed in 2023 emphasized Amazon’s commitment to curbing counterfeits on its platform. These cases serve as cautionary tales for influencers and brands, showcasing the potential consequences of affiliating with counterfeit sellers. How Brands, Influencers, and Consumers Can Protect Themselves For Brands: For Influencers: For Consumers:
The Deckers v. Quince Case Offers Fashion Brands Guidance Amid the Growing “Dupe” Economy
The Deckers v. Quince case proves that even proactive brands will lose intellectual property protection if they claim functional or generic product traits. To maintain a competitive edge, fashion brands must seek intellectual property protection early and make concerted efforts to separate structural utility from ornamental styling. Failure to take these steps may leave brand owners entirely defenseless against “dupe culture,” permanently surrendering their most profitable product features to the public domain. Deckers Outdoor Corp. v. Last Brand, Inc., 3:23-cv-04850 (N.D. Cal.). Background In 2023, Deckers—the parent company of the UGG footwear brand—sued online retailer Quince for design patent and trade dress infringement based on Quince’s sale of dupe boots, which Deckers alleged replicates the look and style of the UGG brand. Before trial, the court found Deckers’ unregistered trade dress claim for the Classic Ultra Mini (and related styles) too common to function as a source identifier, knocking out Deckers’ trade dress theories. Deckers proceeded to trial on a design patent infringement claim directed to the UGG Classic Ultra Mini boot’s upper, silhouette, and surface details. At trial, the jury was tasked with determining whether the overall appearance of the accused Quince boot was substantially the same as the overall appearance of Deckers’ patented design. The jury was also instructed to decide whether the patent was valid in a crowded field of shearling boots. The jury agreed that Quince’s product infringed under the ordinary observer test but found the claimed design invalid for obviousness based on prior art and the fact that portions of the claimed design were dictated by function rather than aesthetics. Because the jury found the patent invalid, Deckers obtained no damages and no injunction, leaving Quince free to keep selling its lookalike boots. Takeaways for Fashion Brand Enforcement Quince underscores the importance of converting a product “look” into robust intellectual property rights before waging an enforcement campaign against a marketplace full of similar designs. The Quince decision should encourage fashion owners to incorporate patentability assessments early in the design process. Brands that take this proactive approach are far more likely to minimize risk of prior art validity challenges, and secure protection for their product’s visual identity, even in a marketplace crowded with dupes. When design patents prove vulnerable to prior art, brands often look to trade dress as a longer‑term anchor for protecting the look and feel of their best‑selling products. However, preserving trade dress protection for popular fashion design requires careful planning and diligent enforcement before the marketplace becomes saturated. In a dupe‑driven market, brand owners should not abandon early efforts to secure trade dress protection. To establish a trade dress as a unique source identifier for product design, brands should adopt “look for” advertising, document advertising expenditures, and conduct formal consumer surveys. They should also document unsolicited media coverage focusing on the unique aspects of the trade dress, such as the product’s appearance in television, social media posts, news articles, and fashion critic reviews. Courts reward brands that can point to a clearly defined, consistently used “look and feel” advertising, and a record of treating that look as proprietary long before copycats crowd the field. Courts may be unwilling to treat widely used product features (like core shearling‑boot shapes) as distinctive and non-functional, especially where the field is crowded and consumers see the features as category norms rather than brand signifiers. Before asserting an unregistered trade dress, consider obtaining registered trade dress protection, which provides a presumption of validity. Once a trade dress is registered, the burden is on the infringer to establish that the trade dress lacks distinctiveness and that the trade dress is functional. The result in Deckers may have been different had Deckers obtained a trade dress registration prior to bringing suit. Even if an applicant is unsuccessful obtaining a registration, the Trademark Office’s feedback on functionality gives the brand owner an opportunity to evaluate the strength of its trade dress before filing a lawsuit, which can save millions of dollars in attorneys’ fees. While design patent infringement allows the patentee to recover all of Defendant’s profits, the Quince verdict shows the importance of vetting prior art designs and functionality arguments in advance. Brand owners must invest early in validity analyses (e.g., prior art searches and functionality risk assessments) before banking on a design patent as the centerpiece of an anti‑dupe strategy. Fashion brands should employ a layered approach to protecting their designs by combining design patent rights with other forms of intellectual property protection. In the Quince case, Deckers pursued both trade dress and design patent claims and lost on both fronts, highlighting that no single right is a silver bullet against dupes. Effective enforcement in the “dupe” space will often require a portfolio approach, including designs, trademarks, copyrights, contracts, and platform tools, coupled with the understanding that some designs may never be fully fenced off from competition. Conclusion Despite the outcome, Deckers v. Quince offers guidance for brands seeking to police lookalike products through trade dress and design patents. For rights‑holders, the message is clear: success in the current dupe era depends on a design’s distinctiveness and novelty just as much as the design’s popularity.
A brand is more than a trademark.
Why the strongest intellectual property strategies begin with understanding the business behind the brand.