#DupeInfringement: When Social Media “Dupes” Cross the Trademark Line

By Linda Monge Callaghan

In recent years, the term “dupe” has entered mainstream consumer jargon, fueled by social media platforms, influencer culture, and an increasingly price-conscious market. A “dupe”—short for duplicate—typically refers to a product designed to mimic the appearance, aesthetic, or perceived value of a higher-end luxury item at a fraction of the cost.  

TikTok and other platforms are flooded with creators boasting about their ability to find cheap, unbranded alternatives to luxury fashion, Stanley tumblers, and high-end makeup. Behind the millions of likes and viral views, a legal storm is brewing. The fun internet trend of promoting “dupes” has officially crossed the trademark line and everyday content creators are finding themselves in the crosshairs of multimillion-dollar corporate lawsuits.

At the heart of the issue lies trademark law, which is designed to protect consumers from confusion and to safeguard the goodwill that brands have built over time. Trademarks can include brand names, logos, symbols, and even distinctive product designs, often referred to as trade dress. 

Trade dress protects the overall visual appearance and design of a product if it is unique enough to signal to consumers who made it, such as Louis Vuitton’s LV monogram on purses, the specific structural stitching on a Lululemon jacket, or the exact shape and sole pattern of a trending sneaker. When a “dupe” copies these elements so perfectly that it creates consumer confusion as to the source of the goods or services, it crosses the line from a harmless alternative into willful trademark infringement.

For a long time, major brands played a frustrating game trying to stop these types of infringement. They focused their legal energy on suing the social media platforms themselves to get infringing videos taken down, or they targeted massive, shadowy manufacturing operations overseas.

However, major legal shields make suing platforms a dead end for brands. Courts have held that online intermediaries and platforms cannot be held liable for contributory trademark infringement based on a generalized knowledge that counterfeits are being sold on their site. Unless a brand provides a platform with specific knowledge of a precise, individual trademark violation, the platform is legally in the clear.

As a result, trademark owners are now bypassing the platforms entirely and suing the individual influencers directly.  Creators rely on public visibility, verified accounts, and open monetization links to make a living. By putting their names and faces on the promotion of these items, they become highly visible, easily trackable legal targets.  Often, major brands are now using influencers’ own social media posts and metrics against them in court as evidence to support their infringement claims. 

In a recent case, Nike, Inc. v. Nicholas Tuinenberg, Nike sued social media influencer Nicholas Tuinenburg and received an $11 million verdict against the creator who promoted replica Nike dunk sneakers. Even though the shoes replaced the Nike “Swoosh” with Tuinenberg’s own logo, the jury ruled that the design still violated Nike’s registered trade dress. Nike used the creator’s own video captions to prove he intended to exploit the brand’s identity for profit.  

The era of consequences for social media influencers seems to have arrived. That online post might generate a few hundred dollars in affiliate revenue today, but it could very easily invite a six-figure federal trademark lawsuit tomorrow. In the modern marketplace, copying a brand’s hard-earned identity is no longer just a digital trend—it is a legal liability.

Linda Monge Callaghan is a partner at Fishman Stewart, specializing in intellectual property law. Linda focuses mainly on trademark and copyright law, including foreign and domestic prosecution and litigation, as well as agreements and assignments.