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    Don't be duped: Tips to protecting fashion IP against replicas

    Amplified by the rapid increase in the number of online retailers entering the South African market, such as Amazon, Shein, and Temu, the fashion industry faces a significant challenge: the rising popularity of 'dupes'. These replicas, often celebrated on platforms like TikTok, pose a serious threat to the intellectual property rights of established brands.
    Image source: ttatty –
    Image source: ttatty – 123RF.com

    ‘Dupes’, shorthand for duplicates, have become increasingly prevalent, especially among Gen Z consumers. Platforms like TikTok have been instrumental in this surge, as seen in the skyrocketing searches for Skims dupes on Amazon, surpassing those for the original products. This shift reflects a broader change in consumer behaviour, where the allure of affordable replicas overshadows the quest for authenticity.

    Unlike outright counterfeits, which illegally mimic brands and trade marks, dupes often navigate a grey area in IP law. They replicate the look and feel of a product without directly infringing on trade marks or design patents. However, this burgeoning dupe culture still raises significant concerns for original creators, eroding the value of their unique designs and potentially leading to financial losses. On the other hand, the nature of the fashion industry is such that many brands and designers are influenced by each other, with trends and design elements often overlapping. This means that not all ‘dupes’ are actually dupes but rather part of the various trends making their way through the market that don’t infringe on any protectable rights.

    Duping the SA landscape

    In South Africa, the challenge is twofold. The festive season traditionally sees a spike in consumer spending, making it a prime time for dupe sellers to capitalise on budget-conscious shoppers. Moreover, South African IP law faces the task of distinguishing between legal but morally questionable dupes and outright illegal counterfeits, a nuanced challenge in the rapidly evolving digital marketplace.

    Local South African designers and brands are particularly vulnerable. The dupe culture not only affects sales but also dilutes the uniqueness of their creations. For emerging designers, this can be especially demoralising, as their innovative designs are swiftly replicated by fast fashion giants, leaving them struggling to compete.

    Addressing this issue requires a multifaceted approach. Increasing consumer awareness about the negative impact of dupes on designers and the industry is crucial. This involves highlighting the value of authenticity, craftsmanship, and the ethical implications of supporting dupes. Additionally, strengthening IP laws and enforcement in South Africa is vital to provide better protection for original designs.

    Local and international intellectual property (IP) rights owners and brands in South Africa can adopt several strategies to protect their rights and mitigate the impact of dupes on their businesses. These strategies should be a combination of legal, educational, and marketing approaches:

    Enhanced legal protections and enforcement:

    1. Register intellectual property: Ensure all trade marks, designs, and patents are registered with the South African Companies and Intellectual Property Commission (CIPC). This provides a legal basis for enforcement actions against infringers.
    2. Monitor the market: Regularly monitor online marketplaces, social media platforms, and retail spaces for potential infringements. Utilise technology solutions like AI-driven tools for this purpose.
    3. Legal action against infringers: When infringement is detected, take prompt legal action. This may include cease and desist letters, litigation, or seeking urgent orders against sellers of counterfeit products.
    4. Customs collaboration: Work with South African customs officials to intercept counterfeit goods at borders.

    Consumer education and awareness:

    1. Public awareness campaigns: Launch campaigns to educate consumers about the differences between genuine products and dupes, focusing on quality, ethics, and the legal implications of purchasing counterfeit goods.
    2. Highlight the value of authenticity: Use social media and other platforms to promote the value of original design, craftsmanship, and the brand's unique story.
    3. Collaborate with influencers: Partner with reputable influencers who can advocate for authentic products and raise awareness about the negative impacts of counterfeit goods.

    Image source: Allan Swart –
    SA's battle against fake goods

      7 Nov 2023

    Strategic marketing and product strategies:

    1. Exclusive releases and authenticity proofs: Release products with unique features that are difficult to replicate. Provide authenticity certificates or use secure holograms and serial numbers.
    2. Accessible pricing models: Consider introducing more accessible product lines or limited-time offers to cater to budget-conscious consumers, thereby reducing the allure of dupes.
    3. Direct consumer engagement: Use direct-to-consumer channels, including e-commerce and physical stores, to ensure consumers have access to genuine products.

    Collaborative efforts:

    1. Industry coalitions: Join or form coalitions with other brands to collectively address the issue of counterfeiting and lobby for stronger IP laws and enforcement.
    2. Partnerships with online platforms: Work with e-commerce platforms and social media sites to develop protocols for removing counterfeit listings and penalising sellers of fake goods.

    Adapting to local context:

    1. Understand local market dynamics: Tailor strategies to the specific challenges and consumer behaviours in the South African market.
    2. Community engagement: Engage with local communities and stakeholders to build a positive brand image and educate on the importance of IP rights.

    By combining these strategies, brands can create a robust approach to protect their IP rights and diminish the prevalence and impact of dupes in the South African market. This approach not only safeguards the brands' interests but also promotes a healthier, more sustainable, and ethical consumer culture.

    About Gaby Meintjes

    Gaby Meintjes is a director at Fairbridges Wertheim Becker Attorneys. She specialises in intellectual property and commercial law.
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