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Milan Fashion Week And Fashion Law Trends: The Rise Of Dupe Influencers – Are Social Media Platforms Ready For This New Battle? – Social Media



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The Milan Fashion Week is back and so is our fashion law column.
As usual, in this series of articles (one for each day of the MFW)
we will highlight those that in our view are the main trends in
fashion from a legal perspective and, while it remains an
all-female initiative, for this new edition we are happy to welcome
on board also our colleagues from our corporate team. We thus hope
you will enjoy our return as much as that of fashion shows and
cocktail parties!

After mega, micro and nano influencers it is now the turn of
dupe influencers, which in the last months have been taking over
all the main social media and especially those mainly used by the
Gen Z. In fact, if one side the Gen Z seems to care more about the
environment and sustainability more in general, on the other side
teenagers do not look willing to invest significant moneys to buy
their luxury dream clothing and accessories.

Nothing new so far since fakes have always been around and this
is a long lasting battle for fashion brands, but the difference is
that while traditionally one did not want to make public disclosure
and tried to pass off the knockoff for the original item, there is
now a new category of influencers who are advertising the sale of
fake items and are building their career 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, benefiting from features such as direct
messages visible only once and 24-hour Instagram Stories that make
it significantly easier for users to peddle fake designer goods
without leaving a trace.

Further, hashtags like #dupe, #designerdupe and #fashiondupe are
among the most popular and some influencers in their posts discuss
how to make and sell dupes and show the ones they bought to rate
them. In addition, a refined scheme was recently discovered whereby
influencers on their accounts provided links to the listings
available on a marketplace, that featured a non-infringing generic
item, and after buyers placed an order for the generic item, they
received instead a luxury counterfeit product in return.

Social media are thus considered the key markets where
counterfeit goods are currently sold to the general public. This
led to the rise of dupe influencers and brought back into the
spotlight the issue of the liability of social media platforms,
which from a legal perspective are compared to marketplaces like
e-Bay and Amazon.

Under Italian law, pursuant to article 17 of Legislative Decree
no. 70 of 9 April 2003, which implemented the E-commerce Directive
2000/31/EC, as hosting providers, social media platforms and
marketplaces do not have a general obligation to monitor the
lawfulness of the content published by users on their platform.
However, upon notification by the rights holder, they have the
obligation to take action for the removal of unlawful content when
its infringing nature is evident.

Moreover, in its decision of 3 October 2019 in case C-18/18, the
EUCJ held that Internet Service Providers may also be required to
remove contents equivalent to those found to be unlawful.
Therefore, the platforms can be requested to remove any other fake
item with the same characteristics (i.e. including the same
infringing content) as the contested dupes.

To this end, the main social media platforms and marketplaces
have adopted a notice and takedown system, enabling rights holders
to ask the removal of the infringing items directly through the
platform by including the relevant URLs.

Furthermore, given the fast and wide-reaching grow of the
phenomenon, the American Apparel & Footwear Association (AAFA)
recently released some guidelines to combat dupe influencer
content. In particular, according to AAFA’s recommendations
the following actions shall be taken:

  • Social media platforms must clean up their sites and reconsider
    their T&Cs;

  • Social media platforms should block certain hashtags (e.g.
    #designerdupes);

  • Social media platforms must terminate the accounts of dupe
    influencers who repeatedly promote counterfeits;

  • Dupe influencers need to improve their product
    disclaimers;

  • Consumers need more information about the reach of
    counterfeits.

This is only a first step but it makes clear that influencers,
consumers, online platforms, and brands shall all play their part
to raise awareness on the health, product safety, environmental,
and labor concerns related to the production and distribution of
counterfeits. So remember that dupe influencer is currently a (bad)
trend on social media platforms but such trend has many negative
impacts and most of such influencers actually crave for the
original items, which remain much more fashionable!

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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