“Dupes” and “Dupe Culture”: A “Wirkin” instead of a “Birkin?”
By Chris Simboli
Much discussion has been generated recently on the subject of product “dupes” (short for “duplicates”) and associated “dupe culture.” A great deal of attention in this area centers around the fashion industry, and specifically high-end expensive products such as designer purses and clothing.
Today many consumers are searching for products that look very much like their high-end original counterparts, but are available to consumers at substantially lower price points. It is important to recognize that a “dupe,” generally speaking, is a product that resembles a more expensive original item in terms of its style, function or aesthetic without a blatant attempt at being an outright counterfeit of the original and without using or copying the trademarks, logos or branding of the original. Conversely, counterfeit products look very much like their high-end original counterparts and illegally use and copy the trademarks, logos or branding of the original. This distinction is important because it largely determines whether a product is perhaps a permissible imitation or if that product crosses over into the world of counterfeit goods resulting in intellectual property infringement.
Certain intellectual property laws protect brand identifiers, creative expression and ornamental design. “Dupe” products are causing friction in several of these legal areas. For example: (1) trademark law protects names, logos and distinctive brand elements. A “dupe” that uses or mimics an original product’s “trade dress” (i.e. its overall look and feel) may constitute trademark infringement if it confuses consumers into thinking they are buying the original product; (2) copyright law protects original works of expression and artistic elements, such as patterns or packaging designs. A “dupe” that uses or copies these protected elements could result in copyright infringement; and (3) design patent law protects the ornamental design of a product. If a “dupe” uses or copies the ornamental design protected under a design patent then this risks legal action for infringement even if the branding of the imitated product is not used or copied on the “dupe” product.
“Dupe culture” thrives on social media, where internet influencers often promote to their subscribers or followers “affordable alternatives” to high-end expensive originals. Take for example last year’s Walmart “Wirkin” (as it became unofficially, known) purse that had a retail price under $100, but which was a “dupe” of the Hermes “Birkin” which retails for more than $10,000 with some pre-owned items going for several hundred thousand dollars or more. The very first original “Birkin” purse, made and named by fashion house Hermes for British actress Jane Birkin in 1984, recently sold at auction for $10,000,000. Yes, that’s $10 Million.
“Dupe culture” reflects broader economic and market realities, such as rising prices, social media‑driven trends and viral followings, and general consumer desire for access to high-end products that are otherwise unaffordable. With “dupe culture” comes challenges to legal frameworks designed to protect innovation and brand identity. As consumers continue to normalize “dupes,” courts will inevitably be faced with new questions about what constitutes market confusion, permissible imitation and fair competition.
If you or your business are involved or interested in “dupes” or “dupe culture,” careful consideration must be given to the many legal issues surrounding these subjects. At Parsons Behle & Latimer we have experience assisting clients with trademark, branding, infringement and other areas of intellectual property law. Please let us know how we can help you or your business in this regard.
Descriptive: The Pop Quiz
By Margaret Niver McGann
There appears to be an increase of descriptive refusals, particularly with regard to 44(e), foreign based filings. Perhaps this should not be a surprise. Early substantive refusals help achieve the USPTO’s goal of decreasing application backlog and time to registrations metrics. As such, and as always, it is good to know what the USPTO has recently found descriptive.
Below are some recent and instructive holdings. See if you can guess what the TTAB did.
1. Mark: DOCRETENTION
Goods/Services: Document retention SAAS and downloadable software
Outcome: Upheld refusal to register; descriptive
“That an applicant is the first to use a term and others have not yet done so does not mean the term is not merely descriptive of the applicable goods or services if the evidence otherwise shows that is how consumers will perceive it.” In re Inkit Inc., Ser. No. 97915050 (June 17, 2025) [not precedential].
Highlighting the limits of what had been a trend of allowances for phases created by combining common terms.
2. Mark: GHOSTWRITTEN
Goods/Services: Included publication of on-line journals, blogs and e-books
Outcome: Overturned refusal to register
“If the mental leap between the word and the product’s [or services’] attributes is not almost instantaneous, this strongly indicates suggestiveness, not direct descriptiveness.” In re Ghostwritten LLC, Ser. No. 98199104 (July 11,2025) [not precedential].
Highlighting the importance of careful crafting of goods and services, and provision of evidence by applicant.
3. Mark: PRINCETON EQUITY GROUP
Goods/Services: Strategic financial advisory services; providing equity capital for others
Outcome: Upheld refusal to register, descriptive
Addition of descriptive terms cannot render geographically descriptive mark non descriptive. In re Princeton Equity Group LLC, USPQ2d 829 (TTAB 2025) [precedential]
4. Mark: NATIVE NATIONS CANNABIS
Goods/Services: Cosmetic bath salts, massage oils…all the foregoing containing ingredients solely derived from hemp with a delta-9…(THC) of not more than .3 percent.
Outcome: Overturned refusal to register
Insufficient evidence that NATIVE NATIONS was descriptive of specific location of goods or that consumers are aware of native nations growing hemp or cannabis. In re FSST Pharms, LLC Serial No. 97419333 (July 8, 2025) [not precedential]
