What makes it a dupe? Exploring consumer understanding of legally copied products in the fashion industry

Abstract

Legally copied products (LCPs) (e.g., dupes; Walmart's Wirkin) have been a persistent structural limitation in the United States' legal regime governing fashion design, generating consumer confusion in the marketplace. However, while the United States court infers the likelihood of consumer confusion, using a multi-factor framework, it remains unclear how consumers empirically perceive confusion due to design similarities, and their similarity assessment procedures follow the legal framework. To fill this gap, this study conducted two studies within the legal framework: a qualitative study (Study 1) and an empirical investigation of consumer confusion (Study 2). Study 1 identified the key design factors that consumers use to distinguish LCPs: color schemes and monogram designs. Based on Study 1's findings and legal cases pertinent to fashion trademarks in the U.S., Study 2 found that minimal modifications to low-end LCPs increased participants' confusion. The study's findings provide empirical evidence on LCPs in the fashion industry.