©2023. Published in Landslide, Vol. 15, No. 4, June/July 2023, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.
Many organizations, including the ABA Section of Intellectual Property Law, have long been educating the public about the adverse commercial and societal impacts ofFor example, the U.S. Patent and Trademark Office and National Crime Prevention Council have been raising awareness about the importance of intellectual property and decreasing demand for counterfeit products through their “Go for Real” Similarly, the U.S. Immigration and Customs Enforcement, Homeland Security Investigations, and National Intellectual Property Rights Coordination Center have raised awareness about health and safety threats posed by a wide variety of products, including cosmetics, electronics, and These efforts, however, may face some headwinds in light of recent and more permissive consumer attitudes about counterfeit goods.
Having served as trademark counsel for brand owners for over 25 years, I assumed that there were two general categories of people who tended to purchase counterfeit products for their personal use. The first category were consumers who mistakenly thought that they were purchasing a genuine product. These were the consumers with respect to whom trademark and unfair competition laws were clearly intended to protect.
The second category of counterfeit purchasers were those who knew that they were purchasing counterfeit products and who sought to pass off the counterfeit as theWith respect to luxury goods such as clothing, cosmetics, perfumes, and footwear, I generally assumed the discovery that a consumer was wearing a “fake” carried with it at least some modicum of public embarrassment, and that many of these consumers therefore sought to disguise the fact that they were wearing a counterfeit product.
I recently discovered that there may be a tertium quid. In March 2023, the Washington Post published an article titled “In Gen Z’s World of ‘Dupes,’ Fake Is Fabulous—Until You Try ItThe gist of the article is that many younger consumers are perfectly happy to buy and openly advertise the fact that they purchased a knockoff or dupe. Dupes are “a Gen Z rebranding of fashion and beauty products that are cheaper versions of the real thing—duplicate, but also duplicity, since the wearer might trick someone into believing they bought The difference today is the lack of stigma associated with the discovery that you are wearing a dupe. Social media influencers (which unsurprisingly does not include this Gen X attorney) crow about finding dupes of expensive fashion apparel. The old conceit of a “good” counterfeit remains true of today’s dupes—namely that the more likely the dupe will be mistaken for the original, the better. However, among these consumers, there is no shame attached to the purchase and promotion of dupes. In fact, the opposite may be true. “The perfect dupe tricks everyone and—when you crow about it publicly—no
To understand more about today’s dupe culture, I consulted some of the foremost experts on Gen Z culture with whom I am acquainted: my own teenage children. I first asked them (one a 17-year-old high school senior and the other a 14-year-old eighth grader) if they were familiar with “dupes.” After sharing with me approximately 20 consecutive TikTok videos, I took their response to be “yes.” More significantly, they recognized that the term “dupe” encompasses a spectrum of nonauthentic products. At one end of the spectrum, a dupe might be merely look-alike apparel that they can purchased at stores such as H&M or Shein, or makeup or perfume that looks or smells like another branded product. They understood that these products are sold under different brand names and that purchasers of these products usually know that they are not buying the well-known or famous branded versions of theseHaving visited certain less-than-reputable shopping districts in several countries, they also recognized the opposite end of the spectrum: counterfeit products that prominently bear the brand name but are fakes.
I asked them what they thought about dupe culture. My 14-year-old explained that there is little to no stigma associated with wearing a dupe: “Kids mix and match real products with fakes all the time. They know what they are purchasing aren’t originals, but are just look-alike fashions.” To them, there was a certain savviness associated with discovering and buying good dupes. “To some of my friends, finding discount clothes or makeup that looks like a super expensive brand is a win. They aren’t shy about talking about it.”
Would any embarrassment ensue if a kid wore a counterfeit product and word got out that they were wearing a counterfeit? My 17-year-old said that it might depend on the type of product: “If a kid wore a fake SUPREME shirt or fake JORDAN shoes, I guess they might be a little embarrassed, but probably not much. But no one thinks a normal teenager could possibly afford some expensive things, like a HERMES bag. You probably could own wearing a fake one.”
If it is true that many consumers—or even a generation of consumers—share this type of cavalier attitude about counterfeit products, brand owners will need to consider new approaches to educating them about the harms caused by counterfeits, not only to the brands themselves, but also to others. Many current anti-counterfeiting campaigns focus on both the potentially significant health consequences of purchasing certain types of counterfeit products (e.g., automotive parts, pharmaceuticals, electronics, or cosmetics) and on the societal impact of purchasing counterfeits in general (e.g., supporting cartel operations or child labor, loss of genuine employment, etc.). Unfortunately, these campaigns may not be reaching younger consumers because they are not adequately engaging them where they spend their time or on the same platforms that promote an indifferent attitude toward counterfeits.
Brand owners also may want to consider focusing some of their anti-counterfeiting messaging around a concern that may resonate with younger consumers: counterfeits are, more often than not, “trash.” While they validated the notion that many young consumers may not attach the same stigma to counterfeits that older consumers do, my kids also validated another premise of the Washington Post article—namely that many dupes are grossly inferior to the authentic products and that social media influencers often don’t care about the lack of quality of the dupes that they are peddling. They understood the inherent risk that a dupe could be a terrible or even harmful product, and this risk limited the extent to which they were willing to buy certain types of products: “Sometimes there’s a reason that the brand name product costs more. Expensive brand name products usually last longer or are just nicer. Sometimes I don’t want to waste my money on fake products that are trash.” It turns out that Gen Zs and Gen Xs alike do not like to get ripped off.
Finally, I asked my kids if they, the children of a trademark attorney, would ever deign to buy a counterfeit product. They answered,We agreed to continue this discussion over the coming weeks.