Milan Fashion Week is back and with it our fashion rights column. As usual, in this series of articles (one for each day of MFW) we will highlight those that we believe are the most important trends in fashion from a legal point of view, and although it is an all-female initiative, for this new edition we are pleased us to also welcome our colleagues from our corporate team on board. We therefore hope that you will enjoy our return as much as you enjoy fashion shows and cocktail parties!
After mega, micro, and nano-influencers, it is now the turn of dupe influencers, who have taken over all major social media in recent months, and particularly those used primarily by Gen Z. In fact, Gen Z seems to be on the one hand to care more about the environment and sustainability in general, on the other hand, teenagers seem unwilling to invest big bucks to buy their luxurious dream clothes and accessories.
Nothing new so far as counterfeits have always been around and this is a protracted battle for fashion brands, but the difference is that while traditionally they didn’t want to disclose and tried to pass the counterfeit on for the genuine product, there is a new one now Category of influencers that advertise the sale of fake items and build their careers on dupes.
According to a study conducted by Ghost Data and reported by Highsnobiety, from June to October 2021, only Facebook and Instagram hosted a total of more than 46,000 active accounts operated by counterfeiters and benefiting from features like direct messages that were visible only once and 24/7 Instagram Stories that make it much easier for users to sell counterfeit designer goods without leaving a trace.
Additionally, hashtags like #dupe, #designerdupe, and #fashiondupe are among the most popular, and some influencers post in their posts discussing how to make and sell dupes, and show off those purchased to rank them. Additionally, an elaborate scheme was recently discovered whereby influencers provided links on their accounts to listings available on a marketplace that contained a non-infringing generic item, and after buyers placed an order for the generic item, they received a luxury fake instead product in return.
Therefore, social media are considered to be the key markets where counterfeit goods are currently being sold to the general public. This led to the rise of dupe influencers and brought back the spotlight on the issue of liability of social media platforms, which are legally compared to marketplaces like e-Bay and Amazon.
According to Italian law, pursuant to Article 17 of Legislative Decree n. 70 of April 9, 2003 implementing the Electronic Commerce Directive 2000/31/EC, since hosting providers, social media platforms and marketplaces are not generally required to verify the legality monitor the content posted by users on its platform. After notification by the rights holder, however, they are obliged to take measures to remove illegal content if its infringing character is obvious.
In addition, the ECJ ruled in its decision of October 3, 2019 in case C-18/18 that internet service providers can also be obliged to remove content that is equivalent to that found to be illegal. Therefore, platforms may be required to remove all other counterfeit items with the same characteristics (ie with the same infringing content) as the offending duplicates.
To this end, the main social media platforms and marketplaces have implemented a reporting and takedown system that allows rightsholders to request the removal of the infringing elements directly through the platform by providing the relevant URLs.
Additionally, given the phenomenon’s rapid and widespread growth, the American Apparel & Footwear Association (AAFA) recently released some guidelines to combat defrauded influencer content. In particular, according to the recommendations of the AAFA, the following measures should be taken:
- Social media platforms need to clean up their pages and reconsider their terms and conditions;
- Social media platforms should block specific hashtags (e.g. #designerdupes);
- Social media platforms must terminate the accounts of fraudulent influencers who repeatedly promote fakes;
- Dupe influencers need to improve their product liability disclaimers;
- Consumers need more information about the reach of counterfeits.
This is just a first step but makes it clear that influencers, consumers, online platforms and brands all need to play their part in raising awareness of the health, product safety, environmental and labor concerns associated with manufacturing and distribution from counterfeiting. So keep in mind that dupe influencers are currently a (bad) trend on social media platforms, but such a trend has many negative effects and most of these influencers actually crave the original items that remain much more fashionable!