Emerging Litigation Podcast

How Product Brands Navigate Today's Dupe Economy with Tiffany Gehrke and Alexa Spitz

• Tom Hagy • Season 1 • Episode 121

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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!

Tom Hagy
Host of the Emerging Litigation Podcast

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Thanks for listening! 

If you like what you hear please give us a rating. You'd be amazed at how much that helps. 

If you have questions for Tom or would like to participate, you can reach him at Editor@LitigationConferences.com.

Ask him about creating this kind of content for your firm -- podcasts, webinars, blogs, articles, papers, and more. 

Why Dupes Are Changing IP

Tom Hagy

Hello and welcome to the Emerging Litigation Podcast. I'm your host, Tom Hagy. So, in fashion, furniture, and consumer goods, copying products is nothing new. What is new though is how openly it's happening and how brands are fighting back. In the last year, we've seen brands like Lululemon file for trademarks such as Lululemon Dupe, not to endorse knockoffs, but to gain leverage over how dupes are marketed and taken down online. More recently, William Sonoma sued online retailer Quint, not over product design, but over how Quintz advertises its furniture as low-priced alternatives to Pottery Barn and West Elm. And at no point during this conversation did I exhibit any expertise in any of these catalogs, or certainly uh in fashion, although I do have a nice couch. These moves signal something bigger. In the modern dupe economy, the legal battle is shifting away from who owns a design and toward how products are described, compared, and framed for consumers. So that's a big difference. Today's guests are Tiffany Gehrke and Alexa Spitz of Marshall Gerstein. They've been tracking this shift closely. They argue that trademark strategy, advertising law, and platform enforcement are converging, and that today's Inspired By product may be tomorrow's infringement or false advertising dispute. So let me say a little bit more about the two of them. Tiffany Gherke is a partner and chair of the Trademarks and Copyrights Practice Group at Marshall Gerstein and Boren. She advises companies ranging from global brands to startups on trademark strategy, brand enforcement, and IP litigation. She's got a lot of experience enforcing and defending IP rights in federal courts and before the USPTO, widely recognized for her strategic solutions-oriented approach to brand protection. She got her JD with a Certificate and Trial Advocacy from Loyola University, Chicago College of Law. With her is Alexa Spitz. She's an associate in the Trademarks and Copyrights Practice Group at Marshall Gears Teen and Bourne. She focuses on trademark strategy, enforcement, and emerging IP issues at the intersection of fashion, technology, and digital commerce. She's a graduate of the Boston College Law School. This is Alexa's first time on the podcast, and I don't know, uh Tiffany, I think we're a number of three or four. So um it's a pleasure to have her back. I will say, uh, for a first timer, Alexa was pretty bold in bringing visual aids. So she's off to a good start. Which will only work when you uh when you watch this on YouTube or some other video platform. And I should reference that this uh podcast is based on an article that they wrote for Law 360. I'll put a link to that in the show notes. And now, here is my interview, my discussion, my wide-ranging conversation with Tiffany Gherky and Alexa Spitz. Of Marshall Gerstein and Boren. I hope you enjoyed it.

When “Inspired By” Becomes Infringement

Tom Hagy

Tiffany Gherkey, Alexa Spitz, thank you very much for joining me on the Emerging Litigation Podcast today.

Tiffany D. Gehrke

Thanks for having us. It's a pleasure to be here.

Tom Hagy

And as I said, uh Tiffany, this is your third time, and there will be a sport jacket of some kind or a hoodie. I think I'm gonna go with the hoodie as I talked about. In your article, which I've referenced, it notes that dupe no longer means only counterfeit goods intended to trick consumers. It can also mean lower cost or inspired by uh that's in quotes alternative that doesn't intend to confuse consumers about the source of the of the product, but practically what facts move a product from permissible, quote unquote, inspired by competition into actionable trademark or trade dress infringement? And where do you see the hardest gray areas?

Alexa Spitz

You know, I would say that it comes down to what is and is not protectable because not every element of a brand is eligible for trademark protection. And we actually got a really interesting case recently out of the Southern District of New York of Paulo versus Sol de Janeiro. Are you familiar with that case, Tom?

Tom Hagy

No. No. I'd like to hear more. I'd like to hear more of that.

Alexa Spitz

Oh, you would. Okay. Well, that's wonderful.

Tom Hagy

So for those that see how organic that was? Go ahead. Tell me that.

Alexa Spitz

For those who are not familiar with the party, Sol de Janeiro is the maker of the Brazilian Bum Bum brand body cream. And I actually I have the jars here if anyone for my visual learners out there say anyone has seen this.

Tom Hagy

That's a first.

Speaker 2

Yes, this lotion out on shelves. This is the disputed trade dress coming out of the Southern District of New York made by Sol de Janeiro. Um, and Apollo is the maker of a nutrius brand body cream that you may or may not have seen on shelves at Costco. And it's supposed to be a lower cost alternative to the Sol de Janeiro body cream. And so what happened here was Apollo decided to bring a declaratory judgment action in New York against Sol de Janeiro to get their trade dress decided to be functional and therefore not protectable. So then Sol de Janeiro would not be able to sue Apollo for trade dress infringement. And just for reference, I also have Apollo's Nutrius brand.

Tom Hagy

Let's see that. Yeah, okay. Oh wow. Sure.

Speaker 2

And then side by side, you know, these two.

Tom Hagy

So it's what a coincidence that I have both of those. Oh, yeah, I'm sure you're in my dressing room.

Speaker 2

Because everyone should, the essentials, hair and makeup.

Tom Hagy

Bum bum.

Speaker 2

Yeah. Okay. So we'll explore that. Those are the lotions. And uh unfortunately for Sol de Janeiro, the court found that their trade dress was functional and therefore not protectable. And so they weren't ultimately able to bring an infringement action because the particular trade dress that they would have wanted to assert against Apollo is not protectable at all. So I think that that's really helpful for brands on both sides of the dupe economy to keep in mind when they are designing their dupe products, uh things that could lead to a liability risk and also for enforcement purposes, the types of elements of a product that you could enforce against someone else because you could have the absolute worst of intentions to rip someone off to copy. But if you select an element of their product that's not protectable, then there's no liability.

Tom Hagy

Okay. Wow. All right, good. Um, yeah, and and I think a lot of people I sense a lot of people might be also trying to dupe my podcast because they see this and they think, wow, that guy's onto something, right?

unknown

Mm-hmm.

Tom Hagy

Okay. So moving on

The Sol De Janeiro Trade Dress Loss

Tom Hagy

to the next one. So because you had a visual aid, let's let's let's stick with you, Alexa. Um, and your name Alexa, does that come up as a problem ever?

Speaker 2

Regularly, yes. Yes, yes, okay.

Tom Hagy

Just yeah. You and Siri.

Speaker 2

Yes, you you can change the Amazon to to be called computer. So I highly recommend friends and family ever the less.

Tom Hagy

Okay. All right. I I just I don't know why that just occurred to me. Um, so sticking with with you, Alexa, you describe um a runway to dupe pipeline that can be extremely fast. Sometimes a dupe version can get out before the uh the actual version, the original version, to market. So, hey, we're quick. They obviously don't have a lot of obstacles to somebody doing things legitimately. I didn't mean to imply they weren't doing it legitimately. Anyway, you cite uh reporting that uh Shine released uh 2,000 to 10,000 new styles each day. And that was uh in in 2021. And that Zara, is it pronounced Zara?

Speaker 2

Zara and Sheehan, yes.

Tom Hagy

Okay. Oh, Sheehan.

Speaker 2

Yes.

Tom Hagy

I got Zara right and Sheehan wrong. Thank you for correcting me. I don't get out much. And that Zara, I think the shirt is from Costco, frankly. And and that Zara releases new styles multiple times weekly, totaling up to about a thousand items per month. So, how should brand owners adapt uh their monitoring and capturing evidence and their enforcement triage when product cycles move that fast?

Speaker 2

It can feel overwhelming, especially in the retail beauty makeup uh sector where dupes do hit the shelves often before the original product, especially for smaller designers where their production might take a little bit longer than say a Zara or a Sheehan that does this as their business. And uh, as difficult as that might be, and some brands are finding that traditional civil litigation, depending on their objectives for enforcement, may not be their best option anymore in the dupe economy. What I think is really important to address is the risk of speed for the follow-on dupe brands. Because I feel like that doesn't get as much attention because the pressure is so great for these brands who, because they are follow-on brands, don't have the same uh trademark brand reputation as the original brand. And so it really is kind of a race to get to the market first and capture as much of this new demand for a lower cost alternative as possible. And so it's essential for these brands to start baking into their product design and production process and IP review, some sort of system where they look at perhaps the product that is inspiring their creation, thinking what elements are protectable in that product, ideally working with a licensed trademark attorney, and then looking at perhaps even in the product design and development phase, you know, what are we trying to produce? How far is too far? What elements are we going to make look similar to the original product? Because that does serve a purpose. Like as I showed you with the lotions, it's super helpful to have a jar in a Costco warehouse that slightly resembles the item that it's supposed to be a lower cost version for to signal to consumers, hey, if you liked this thing or you would like to have this thing, uh, here's a lower cost alternative for you, just to signal that there's some sort of an association. So I think it is really important for, especially dupe brands in this fast-paced economy, to take a step back, do a quick IP review, consult an attorney, and really make sure

Surviving The Runway To Dupe Pipeline

Speaker 2

that the products that you are putting to market have a lower risk of receiving a cease and dislist letter, ending up in court, or the subject of perhaps a takedown notice online for a retailer.

Tom Hagy

You mentioned working with a licensed trademark attorney. Where would somebody find uh someone like that? I'm gonna move on. So you you're um uh so let's let's move on. So let's uh Tiffany, it's uh let's turn to you. So hold on a second. This is blue. Yes. Why trademarks still sit at the center and what they're for? So you frame uh trademarks as protecting a brand's name and reputation and and as a consumer protection mechanism, preventing confusion about affiliation, sponsorship, and endorsement. When brands communicate about dupes publicly or pursue platform enforcement, how do you recommend balancing consumer protection, brand messaging, and the optics of overenforcement?

Speaker 1

Yeah, so a lot of that depends on the nature of both the original product and what um the dupe would be. For example, the first question is is this something that's safe? Right? Is this a product that's going to, you know, if it's not yours, is it going to harm a consumer, right? You might have a different, uh, more heightened um, you know, strategic approach to preventing those from reaching consumers. The other thing is looking at, you know, this lower cost alternative. Is it fairly described as that? Is it actually a comparable product? Is it not? Um, you know, you want to look at making sure that your, if you're the brand owner, say you're a luxury brand owner, right? Consumers are coming to you and for your products for a certain quality, maybe, maybe a very um, you know, niche market, maybe there's only limited quantities, you know, there's things that they're looking for with that. Maybe it's ethically made, you know, there's all sorts of things that um your brand could signal. And so when you're looking at what the, you know, a dupe product may be, if it's a counterfeit dupe, you're gonna take a harder approach to that, right? And be a lot more forceful about it because that is not permitted, right, under the law. If it's an inspired by dupe, well, then you have to look sort of like what Alexa was talking about at the elements. What elements are in common? What are what might we have that's protectable that we could enforce against the other side? And then also look at the dynamics of the power. Who is the other party? What is their intention? You know, is this like uh, you know, a pop-up, you know, one person shop that thought that they were, you know, kind of repurposing things? Or is this a you know an enterprise organization that is gonna, you know, just flood the market with these products? And you might take two different approaches depending on that.

Tom Hagy

Okay. All right. So um, so you describe a common strategy of layering trademark and trade dress with copyright. So fabric designs and prints and design patents like ornamental designs to make duplication harder. So for fashion and beauty companies, uh, what does an effective layered IP portfolio look like in practice? And what are the most common gaps you see?

Speaker 1

So I think in practice, it depends on the nature of the product. Is this something, so if we talk fashion first, right? Is this something that you expect to be one season and done? Is this something that you're gonna add to your permanent collection? Is this something that you know you have in sort of different short-term and long-term goals for? And you might do two different approaches depending on that. If this is a long-term product or something that you think could go, you know, the distance, um, you don't always know that ahead of time. But if you think it might be, then you're gonna want to look at things like design patent that takes a little bit longer to get, right? You might want trade dress protection if it's eligible for that. And then you would want to uh look at possibly copyright protection, you know, depending on the nature of what the product is. Sometimes it's eligible, sometimes it's

Balancing Enforcement With Brand Optics

Speaker 1

not. Um, but but the longer term protection are more like the design patent side of things in addition to your trademarks. If it's short term, then you want to look at the cost-benefit analysis. Like, are you going to be enforcing this against others? What do you anticipate, you know, your price point versus you know enforcement cost might be? And typically copyright protection is um fairly cheap to register, and you need to have that registration here in the US to bring a lawsuit and get damages. Um, so if it's you know one of the short-term products, that might be a really good first step beyond whatever you know your regular trademark protection might be for the product. Um if we turn to like the the beauty side of it, the other part of your uh question is you know, there's other things that you could think about. What part of your product is appealing to competitors? Is it the brand name? Is it the product name? Is it the shape of the container it comes in, right? Is it the design that makes it, you know, look really neat? Um and then you want to think about protecting those things as well. And some containers could even be eligible for you know utility patent uh protection, which would take a significantly longer time than the other types of protection we're talking about. But you want to layer on what is the thing that people are gonna want to copy and then look at how to best protect that.

Tom Hagy

Yeah. Yeah. I I I thought about this when I was visiting my daughter in Los Angeles, and in her neighborhood is a uh Vietnamese grocery store. And um when I went in, when I went in, if you blurred your eyes, you thought you recognized all of the products.

unknown

Yeah.

Tom Hagy

You know, like sugar pops, yeah, you know. Um I don't remember which one is which, but Kellogg with the rooster and everything. The colors were the same, the fonts were the same. I'm like, how are they getting away with this?

Speaker 1

But um well, that could be the other where we see the gap that you asked about is that is monitoring, right? You you need to monitor and see what's out there if you're the brand holder. And it could be that the example of what you're you know, sort of describing here, it could be that there's lack of awareness of it, or it could be that in the context of you know flavored cereal X and all of the other similar cereals, that the elements that they all have in common might not be something protectible. And it could be they, you know, have sort of towed that line of inspired by versus directly copying.

Tom Hagy

They were inspired, yeah. Um but the good news is I discovered a new soda there. It was coconut soda.

Speaker 1

Oh, interesting. I don't know that one.

Tom Hagy

I was blown away. I can't remember the name of it. I think it's called Coco. Yeah. Uh anyway, I was it's quite refreshing. So um, so let's come back to Alexa. Uh so Eli highlight the Lululemon. Am I pronouncing that one right? Uh the Lululemon securing a regist US registration for Lululemon Dupe. Uh and it is, never mind. Oh my gosh. I was gonna go somewhere with dupe. I don't know, dua lipa or something. And that would show that I'm hip. That's what we I'm trying to relate to the younger audience. Oh, anyway, so I'll start over. You highlighted Lululemon uh securing a U.S. registration for

Building Layered IP Protection

Tom Hagy

Lululemon Dupe with Dupe disclaimed, and explain how foreign registration pathways can support a US registration without US use, though use may still be needed to sue uh or or win, and non-use can create uh vulnerability to cancellation. So the question is what's the strategic value of registering a mark like Brand Dupe, brand dupe, and how uh should brands think about the benefits, uh platform tools, messaging, et cetera, versus the limitations. Go ahead.

Speaker 2

Well, I think it It's a very unique tool that brands can use, especially in e-commerce, and they can use that for takedown notices, and this is a really great tool for brands because it can help to get products removed faster. So if you are going through the typical civil litigation process and you send a cease and desist letter and then you file an action, we're looking at years before you could possibly obtain an injunction or get damages. And if that's your goal is getting damages, then perhaps that's a great option. However, if your goal is really like Tiffany was saying, if you have a product that's hitting shelves for a short period of time, you just really want to stop the dupes for your season or the time that you're going to be selling it, then on the other hand, a takedown notice with Amazon or another online retailer might be your best option. And often when you're submitting a takedown notice, you do have to prove that you have registered trademark rights and whatever it is that you are trying to have taken down. So when you uh have someone speaking about your product, like I know that the Lululemon Dupe leggings got quite a bit of attention. If nowhere anyone is saying these are Lululemon brand leggings, or you see the little Lulu logo or any of their registered trademarks, these dupe companies are getting very smart. Uh there's not a lot that the brand can do. However, they can still control how brands or dupe companies are speaking about their brand. So if they're they're marketing this is a Lululemon Dupe, and Lululemon over here has a registered trademark for Lululemon Dupe in connection with those goods and services, then they could go to Amazon and say, hey, this is our trademark. This dupe company is infringing it, and we would like to have their content taken down so that users can't buy anymore and they have to go to legitimate products.

Tom Hagy

If you were to make a candy and call it Lululemon Drops, do you guys think there'd be a problem with that? Because I'm thinking of going there.

Speaker 1

Well, would there be source confusion by uh, you know, someone purchasing candy versus purchasing athletic apparel?

Tom Hagy

Yeah. Well, and and Tiffany, come on. Speaking of names, have you thought of opening up a jewelry store? Has that ever come up?

Speaker 2

Not once. I think we should call ourselves Tiffany and Co. because Tiffany is our fearless leader and we're co. I'm Co. This would be so great.

Tom Hagy

Let's do that. I look forward to your lawsuit. Um that'll that'll be fun. We'll we'll cover that on the podcast. From from prison. I know it's not a criminal thing. Um

“Brand Dupe” Trademarks And Takedowns

Tom Hagy

so so back speaking of Tiffany, so you describe, okay, is it Aritzia?

Speaker 2

Aritzia, yes.

Tom Hagy

Okay. I took never mind. Uh so you describe uh Aritzia's application for Aritzia dupe, um, the the USPTO's continued disclaimer requirement, uh, the suspension pending issuance of a foreign registration, and Aritzia's policy argument that broader protection is needed to combat low-quality counterfeit goods like iwear, uh low-quality counterfeit goods online. Um so the question is if if a brand succeeds in registering brand dupe, you know, the name brand dupe without disclaiming dupe, how might that uh change platform takedown dynamics and brand control online?

Speaker 1

Yeah, so it might make it easier. So, right now, what it is, you know, if you have a word disclaimed, it means you're not You know, claiming rights to that mark outside of the registration, and that it's usually a generic or descriptive term in connection with the goods or services offered. And for a lot of the platforms, the e-commerce platforms that are out there, you want the strongest registration you have to be able to hand it to them so that they don't have to look at anything other than you have the registration, somebody's using the same terms and we're done, right? And you can get it taken down. Um, when there's disclaimers, sometimes that allows the recipient of the takedown notice, right? The defendant, for lack of a better word, to introduce a little more ambiguity in combating the takedown or request. And um, you know, most of the platforms, not all, because some do have dispute resolution processes within them. Um, others they they don't want to end up as, you know, sort of the arbitrator of these claims. They want clear lines that they can follow. And then that's all that they're gonna do, right? They don't want liability, they want an easy determination. And so having the registration without dupe disclaimed could arguably make it easier for them to enforce across all these different platforms.

Tom Hagy

Gotcha. Okay. So you note that in digital marketplaces and social platforms, enforcement often turns on registered trademark rights that are tailored to evolving enforcement needs. So the question is, what are the most important steps brands can take to align trademark filing strategy with platform enforcement realities, especially for social commerce?

Speaker 1

Yeah, you want to make sure you're at least getting an application on file to cover what you're actually doing, right? Sometimes you come up with a great brand, right? You've got the, you maybe have the trademark on file, whether it's applied for or registered by that point with certain goods or services, but then things evolve and you add to your product line or you make a very, you know, you add another component like a sub-brand to it. And you're not always as fast or as diligent with those um add-on products as you are, you know, they're not being filed as you're going to market. Um, but if you're gonna be fighting them online, you have to make sure that you actually have coverage for what you're asking for, right? So be be diligent about how you describe what your goods and services are. And several of the platforms will allow you um to use a pending US application as sort of your foot in the door for it. So at least getting it on file can be really helpful.

Tom Hagy

Okay, gotcha. So the conclusion of your article uh suggests that the legal response is no longer confined to litigation alone. Trademark strategy, platform enforcement, public-facing initiatives are coming together to manage reputational risk and consumer confusion. So, what's your near-term forecast? Do you expect uh doctrinal, or is it doctrinal, change in trademark trade dress law uh are mainly uh more innovation

Filing Strategy For Social Commerce

Tom Hagy

and how brands build and deploy enforcement rights? You can answer the doctrinal, doctrinal uh pronunciation question first and move on to your substantive answer.

Speaker 1

My first question is I believe it is doctrinal, but I actually don't know. Um on to the substantive question. Uh I think um we're gonna see more innovation in existing law right now. I think that's usually what pushes pushes sort of the changes at the statute or, you know, in the Lanham Act later is in practice what's happening, right? Because sometimes people are shoehorning in, you know, claims or causes of actions that don't quite fit exactly what we're used to, you know, the law meaning or how the law is applied. And I think um, you know, what is that old phrase like necessity is the driver of in uh of innovation? Sutter of invention. There we go. So I got that one. Yeah. And I think the same is true for trademark law, right? It's once you see that things are not workable, that's sort of where policy shifts happen. But right now, there's still enough creativity with the existing framework that I don't see a huge change happening in result, you know, as a result of the dupe economy at this time. But I do think people are getting more creative with how they're applying existing law.

Tom Hagy

Okay. And I didn't, oh, go ahead. Alexa, please chime in.

Speaker 2

I would also like to add, I feel like what we're seeing, especially in the retail space, is brands starting to utilize more the tools that are available to them or realize maybe that they should. So going back to the Sol de Janeiro case with their trade dress being held to be functional and not protectable, very importantly, Soul de Janeiro did not register the trademark or the trade dress that was disputed in this particular action. And so then, because of that, although it could still be protectable trade dress, they bore the burden of proving at trial that their trade dress was not functional. And that was a heavy burden. And I think uh, especially with trade dress, it's helpful to think about what you actually have to prove for functionality. So functionality isn't just, oh, my product design or packaging is the only or the best way to be functional. Uh, it really is just anything that puts competitors at a non-reputation related disadvantage. So if the in the Sol de Janeiro case, if the jar is easier to open, if the color scheme makes it easier for consumers to tell what the scent is going to be, like all of those little things that aren't really a make or break difference, but could put competitors at a slight disadvantage, that could lead to a finding of functionality. And so it is so valuable for brands to seek protection, get registrations, and not just rely on their common law rights of using the mark of the trade dress in commerce.

Tom Hagy

Do you think because of the subject matter that your your practice is more fun than uh some other fractaries?

Speaker 1

We think so.

Tom Hagy

I mean, no one's really physically getting hurt or anything. You don't have sick people, you just have that looks like my design. Um and I did want to I did want to ask that question too. Uh Alexa, you're you're wearing glasses that are were especially trendy during the last presidential administration. Uh they are aviators for people who can't uh see you. Um so what's that brand? I'm not gonna go there. So the the one thing I did learn in in working with an antitrust firm,

Forecast And Three Practical Takeaways

Tom Hagy

all the eyeglass frames in the world are are built by like two companies.

Speaker 2

Luxotica. Yeah.

Tom Hagy

Well done. Else uh else else El Salor is the other. Uh and I think they merged, so it's El Salor Luxotica. So you can't buy anything uh anymore. It's just funny too. It's the same with perfumes and things like that. You know, you think they're there there are these flavors companies. You guys probably know all this, but I didn't know this. Colors and fit flavors, uh flavors and fragrances companies. It's like you buy Calvin Klein. I don't know why I picked that, but you buy like a Calvin Klein perfume. I don't know if they have one. But yeah, no, Calvin didn't make that in his basement. They some company made it, right? Okay. That's fascinating, Tom. Uh nice diversion. If you could uh offer just three takeaways from this podcast, what would you share with people?

Speaker 2

Sure. So I'll go first. I would really like to leave listeners of this podcast with a message of empowerment. I feel like with rapidly evolving technology and changing consumer preferences and just the speed at which everything is moving now, it can feel overwhelming. It can be scary for the follow-on dupe brands, the dreaded cease and desist letter, the lawsuit. Uh, and on the other hand, the original brands, the threat to their names and reputations like they've never seen before, it can be terrifying. But I think that for the dupe brands, this is an opportunity for them to capitalize on consumer demand for lower cost items that are still high quality, that just really hasn't been there before. So it's an exciting business opportunity for them. And then on the other hand, for the original brands, I think the dupe economy is an invitation for them to rise, to innovate, to create, to develop uh new ways to build brand loyalty, to protect their names and reputations. And I think that it is just such an exciting time to be in business, to be a consumer, to be a trademark attorney, especially.

Tom Hagy

There you go.

Speaker 2

And it is just so wonderful. It's energizing. And so I really want to leave people with not a feeling of fear and the world is ending, and how can I ever protect my brand and I'm gonna get sued if I dupe a product? No, that is not it at all. There's still going to be a balance. And so I think it is just really an exciting time to be here and be involved in this industry. And so I hope that that's what people can take from this.

Tom Hagy

Thanks, Alexa. Uh, the world is ending, by the way. Um so Tiffany, yeah.

Speaker 1

I think um, you know, sort of following on to what Alexa said is that you know, this is not a temporary thing. This, you know, dupe economy is ingrained in us and in our consuming culture at this point. Um, so I think be ready that it's here to stay and figure out what you're gonna do about it, depending on you know what your position is. Um and then I would say that, you know, brand, you know, brand owners are experimenting with proactive, unconventional trademark strategies. Um they're trying to influence messaging and improve enforcement leverage, uh, especially in the context of e-commerce platforms. And then lastly, to think about layered IP protection. You know, there's there's a lot of different options out there from trademark and trade address to copyright to design patents, or as we talked earlier, maybe even utility patents, depending on what you're you're looking to cover. Um and you need to be thoughtful and practical about how you're gonna apply that to what your product and your business goals are.

Tom Hagy

Tiffany and Alexa, thank you very much for talking to me about this. This is an interesting topic to me. I know uh our listeners will enjoy it, so thank you.

Speaker 1

Thank you so much for having us. Thank you.

Ratings Follow Links And Closing

Tom Hagy

That brings us to the end of this episode of the Emerging Litigation Podcast. Once again, I'm your host, Tom Hagey. If you like what you hear, please give us the rating. That always helps. And also follow us on uh, let's see, you can follow us on any major podcast platform, Apple, Spotify, all the rest. You can also check us out on YouTube for the video version and some clips and as well as Instagram and quite a few on LinkedIn as well. If you want to participate, give me a shout. My contact information is in the show notes. Thanks for watching.