by Avv. Giuseppe Croari – Dr. Emma Roberti
In recent years, the phenomenon of dupes has become significantly widespread, especially in the fashion sector.
This term refers to products that recall the aesthetics, design, or some characteristics of well-known items without reproducing the brand, offering themselves as more economically accessible alternatives to the originals.
Authenticity and Imitation in Fashion
Fueled by social media and the new consumer habits of Generation Z, the dupe phenomenon reflects the growing search for affordability and participation in fashion trends, but at the same time raises important questions about the value of originality and creativity.
From a legal point of view, the distinction between lawful inspiration and unlawful imitation plays a central role:
- on the one hand, free competition allows operators to take inspiration from market trends;
- on the other hand, it encounters a limit when the reproduction of distinctive elements is likely to cause confusion among consumers or unduly exploit the reputation of others. In such cases, the protection afforded by art. 2598 of the Italian Civil Code becomes an essential tool for preserving the competitive value of innovation and the identity of brands.
Social Media and GenZ
The growing popularity of dupes is closely linked to the influence of social media, particularly TikTok, where millions of users share reviews, comparisons, and suggestions for products similar to those of the most prestigious brands.
Generation Z plays a central role in this context: young consumers don’t just receive advertising messages but actively contribute to the spread of trends through content creation.
Search for the lowest price
In this way, products aesthetically similar to those of better-known brands are made accessible to a wider audience, while at the same time encouraging greater competition on the market and expanding consumer choice.
This also allows groups of users with lower spending power to follow current trends and participate in consumption patterns that would otherwise be difficult to achieve.
However, the pursuit of the lowest price can result in lower-quality materials, shorter product lifespan, and less rigorous production standards. In the fashion industry, this can mean the use of less durable fabrics and less accurate finishes, or even consumer safety issues.
Reputational damage for brands
For companies, the spread of imitation products can have significant economic effects. In addition to the loss of market share, trademark owners incur significant costs for monitoring, legal protection, and communication.
Thus, when the public associates an imitation product with the original, especially if of inferior quality, the damage can extend to the brand’s reputation and the value built through years of investment in design, innovation, and marketing.
Legal profiles
From a legal perspective, not every imitation is automatically illegal. Free competition allows companies to draw inspiration from market trends and the aesthetic solutions most appreciated by consumers.
The issue becomes more complex when the similarity concerns the distinctive elements that make a product immediately recognizable. In such cases, Article 2598 of the Civil Code, which governs unfair competition through slavish imitation, may apply.
Consider, for example, a bag that faithfully reproduces the shape, proportions, structure, and aesthetic details of an iconic model belonging to a well-known luxury brand, even without using its logo. In such a situation, the trademark may not be counterfeited, but it could still constitute slavish imitation.
Prerequisites for unlawful conduct
Case law identifies three fundamental conditions for conduct to be considered unlawful:
- Individuality of the product, i.e. the presence of distinctive aesthetic characteristics that differentiate it from competitors;
- Faithfulness of the imitation, which must concern the characteristic elements of the original product and not a simple generic inspiration;
- Risk of confusion, such as to induce the average consumer to connect the imitated product with the original one.
The Italian Court of Cassation has repeatedly reiterated that judgments must be made by considering the overall impression perceived by a reasonably informed consumer, and not that of an expert in the sector.
Conclusions
It should be noted that the protection against slavish imitation does not extend to every element of the product. In fact, the characteristics dictated by technical or functional needs remain freely reproducible, as well as the aesthetic solutions now widespread and consolidated in the sector, without any real distinctive capacity.
The boundary between legitimate inspiration and illicit imitation therefore requires a concrete assessment of each individual case.
The spread of dupes thus demonstrates that authenticity and imitation are not absolute opposites, but rather elements of a delicate balance that the law must govern.
The real challenge is to ensure an open and competitive market without compromising the protection of those creative and entrepreneurial activities that are the very foundation of innovation and economic growth.