Concepts: Trademark; Copyright Law

In general, it is becoming hard to know what’s real anymore. For example, there are so many product brand duplicates these days that people in the business save energy with a more efficient nickname. And these affectionately labeled brand “dupes” are everywhere.

The real fight used to be over copying designs. That is no longer the case. It’s about the words used to sell the copied products and the tools brand owners use to make listings disappear overnight.

I’m joined by a valued and ever-eloquent repeat guest, Tiffany D. Gehrke, and ebullient first-timer Alexa Spitz, both of Marshall Gerstein, to shine light on the modern dupe economy and how trademark law, trade dress, advertising claims, and platform enforcement are converging. 

Tiffany and Alexa recently wrote an article for Law 360 on this subject which caught my eye, because someone told me to read it. Which I did. There, and here, our guests told me about:

• The gray area between “inspired by” competition and actionable infringement, including why protectability is the first hurdle and how a product can look suspiciously similar, yet avoid liability if the copied elements aren’t legally protectable. 
• The Sol de Janeiro versus Apollo dispute over body cream packaging and why a court finding of trade dress functionality can shut the door on enforcement.
• The speed-to-market problem: the runway-to-dupe pipeline, rapid product cycles, and why traditional litigation can be too slow when the goal is to stop sales this season, not win damages years later. 
• Practical brand protection strategies that match today’s reality, including layered IP portfolios (trademarks, trade dress, copyright registration, design patents, and even utility patents when appropriate) and smarter monitoring.
• Tactics getting the most attention online: “Brand Dupe” trademark filings like Lululemon Dupe and Aritzia Dupe, how disclaimers can affect enforcement, and why platforms often demand clean, registration-based proof for takedown notices on Amazon and social commerce channels. 

If you or your clients care about brand enforcement, e-commerce strategy, or emerging litigation risk, this one is built for you. Subscribe, share with a colleague, and leave a review so more listeners can find the show.

Thank you, and thanks to Tiffany and Alexa for bringing their A-game!

As always, if you have comments or wish to participate in one our projects please drop me a note at Editor@LitigationConferences.com.

Tom Hagy
Litigation Enthusiast and
Host of the Emerging Litigation Podcast
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