Is using “Dupe" in my Affiliate Marketing... Legal?
Affiliate marketing, and more specifically marketing “dupes” is a big business.
But, is it legal?
You’ve probably heard the term “dupe” before. For our purposes, let’s stick to when influencers or affiliates reference an item that is similar to a more expensive, name-brand item. For example, google any designer make-up product, and there's likely a drugstore dupe for that.
It seems like “dupe culture” is taking over our Instagram and TikTok feeds somedays. While it may seem harmless for influencers to promote these “dupes,” using this term in your marketing efforts definitely has legal and ethical implications.
In this blog post, we’re diving into the legal and ethical implications of “dupe culture” and why you might want to avoid this as an affiliate or influencer in the marketing world.
Can I use the Word “Dupe” as an Influencer or Affiliate?
Short answer, think twice before you do.
If you are an influencer or affiliate marketer, it’s important to know your legal requirements in the online space, especially those around honesty, promoting products you’ve actually tried and love, and intellectual property. I wrote an entire blog post about these legal requirements here.
To summarize, in the US, The Federal Trade Commission (FTC) requires you to disclose your affiliate relationships to your audience so they are aware of your financial interests and relationship with the company. In Canada, the Competition Act has guidelines around marketing and advertising. If you fail to disclose this information when promoting products or services, or fail to follow these guidelines, there could be serious legal consequences. If your audience is in Canada and the US, you should be familiar with both.
Most importantly, being honest about your affiliate experience is key, and all content posted by you as an affiliate must be clear, true, and not misleading. This means you can’t market a product you’ve never used before. Reading reviews and making an “educated” opinion doesn’t count.
Instead, any marketing effort you make must reflect your genuine, personal opinion, be based on adequate information or your experience with the product, and reflect your actual use of it. This is where the lines get blurry when it comes to promoting “dupes.”
The “Dupe” Dilemma
The word “dupe” can be very misleading when you are sharing products. Consumers may wonder whether or not you actually use and love the “dupe” or the original item it’s attempting to take the place of. If you are promoting a “dupe,” but have never actually used that specific product, you are not abiding by the legal and ethical standards for influencers and affiliates because you are not sharing your real experience with the product.
If you DO use and love “dupes,” that doesn’t mean you can’t share or promote them. Sharing these high-quality, more affordable options are a great way to reach a wider audience of shoppers. However, you may want to steer clear from using the word “dupe” in your marketing and promotions.
Amazon’s Anti-Counterfeiting Policy
It’s no secret that Amazon is one of the largest e-commerce platforms and affiliate platforms for influencers. They have extensive policies around counterfeiting and protecting intellectual property rights.
Specifically, Amazon’s Anti-Counterfeiting policy, clearly states “As an Amazon Associate you must not use wording such as “dupe,” “fake,” or “faux” in connection with a brand or knowingly promote counterfeit products or products that infringe the intellectual property rights of others.”
This rule is put in place to protect the intellectual property rights of brands. You can use wording such as “faux fur coat,” but you can’t promote something like a “Beis Mini-Weekender dupe,” if the item isn’t produced by the exact brand, Beis.
Instead, it’s safer and more ethical to use words like “similar to,” “inspired by,” or “shop the look” in your affiliate marketing business.
I get it, everyone is using the word ‘dupe” but that doesn’t mean it’s right. You should at least know the calculated risk you’re taking.
So what’s the risk?
If you fail to abide by this policy, you could be suspended or terminated as an affiliate and face other legal consequences. We’re seeing this happen more and more in the online space and as brands try to tackle this head on. Check out this recent saga from Djerf Avenue where her team requested TikTok take down videos featuring dupes — duplicates of brand-name products — of her brand’s fruit print pajamas.
Other brands are taking on dupe culture head on. One recent example is Lululemon hosting a pop-up “Dupe Swap” where they encouraged anyone who purchased a dupe of their famous Align leggings, to swap them for a real pair - in an effort to show their product was superior. I thought this was a pretty brilliant marketing move.
The Ethics of Dupe Culture
While there are obvious legal l reasons why you may want to avoid using the word “dupe” in your affiliate marketing business, there’s also an important point to consider about copycats.
Nobody wants copycats to steal their work as small business owners, right? However, if you buy and promote “dupes,” isn’t that the same thing as copying other brands’ work?
I’m guilty of this when it comes to bigger brands for sure, I love a good dupe hunt, but it is an interesting point to consider as a business owner, an influencer or affiliate marketer. I try to practice what I preach and be mindful of my consumer spending power; treat others the way you want to be treated, and if you wouldn’t want people promoting “dupes” of something you created, don’t do that to other brands.
All in all, if you are an influencer or have an affiliate marketing business, it’s important to conduct yourself and your marketing efforts with authenticity, honesty, and transparency. Only share what you use and love, always disclose your affiliate relationship with companies, and be careful about how you share “dupes.”
Be mindful of the legal requirements of affiliates and influencers as well as each company’s affiliate agreements and guidelines, as this is your responsibility to educate yourself on.
If you are a business owner looking to implement an affiliate marketing program or are looking to partner with influencers to promote your brand, check out our Affiliate Program Agreement and Influencer Agreement which are fully customizable contract templates you can use in your business, in Canada and the US.
If you ARE an affiliate or influencer for other brands, make sure you understand your legal obligations - if you’ve signed a contract, or are about to - it’s likely the brand expects that you understand your legal obligations, and you may even be legally liable in the event you breach these.