Legal Questions Surface Over Walmart's Hoka Dupe

Yahoo

2 days ago

Dupe culture's the trend, and there may not be much that brands can do about it.
The latest example is a pair of Avia shoes that sold out on Walmart. Some shoppers say the style is a Hoka dupe. One reviewer named Ashley said her daughter's podiatrist recommended the Hoka brand, but noted that 'they are a bit pricey for an elementary age child. I saw these are considered DUPES and when I got them I was so impressed.'
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Another named Jackie wrote: 'This line of Avia shoes are inexpensive copy cats of Hoka shoes, which I cannot afford. Not only were these shoes on clearance, they are similar in fit and comfort to Hoka but for only $8.24 on clearance.'
Bridget said she's an avid Skechers buyer, but tried the Avia shoe because the 'clearance price made it worth the gamble.'
Still, all the reviews weren't positive. Another reviewer, KCShopper, wrote about the excitement of purchasing shoes for $12, but wore the shoes only once because 'both heels were bleeding with the worst blisters.'
While top-tier footwear brands have long been subject to knockoffs, the so-called dupe trend has put the issue in the spotlight. Last year, Walmart sold a 'Birkin' handbag dupe called the 'Wirkin' for $60 that went viral on TikTok and sold out. And shoe designer Steve Madden, whose firm has been around since 1990, remains unapologetic about his brand's propensity for knocking off designer looks.
So what can brands do about the latest duping craze?
'Dupes of this sort are typically legal so long as they are not infringing on the trademark, or logo/branding of the shoe,' observed Mark Brutzkus, partner and chair of the consumer products practice at the law firm Stubbs Alderton & Markiles. 'If Hoka does have a trademark, they will have to prove that Walmart's Avia shoe or its packaging has caused reasonable consumer confusion.'
Brutzkus did raise one potential legal claim. 'What is most likely to be at play is the issue of trade dress, which focuses on the acquired distinctiveness of the shoe design as opposed to its functionality,' he said. But Hoka would have to prove that stitching, silhouette, and other nonfunctional features are associated with their branding by customers and cause confusion when imitated, he explained. 'As these cases can be difficult and expensive to prove, a settlement is far more likely in any case,' the attorney concluded.
Hoka brand executives did not provide a comment by press time.
BTIG retail analyst Janine Stichter said earlier this month in a note to clients that 'dupe culture continues to grow.' Luxury bag dupe posts on social media in April grew by nearly 10 times versus earlier in the year, with Louis Vuitton and Hermès the two most mention handbag brand mention in connection to dupes.
'The growth in dupe culture reflects the increasing demand for mid-tier products that offer strong value propositions following large post-COVID price increases from luxury players. This is particularly true for younger generations, which have a more supportive view of dupe culture,' Stichter wrote.
Jaqui Lividini, founder and CEO of brand strategy firm Lividini & Co., said the growth in dupe culture 'speaks to an economic reality that not everyone can afford to buy into a product that is at a certain level of expense and iconology.' However, the knockoffs allow consumers to participate in that trend and people embrace that, she said, adding that the dupes are 'just a more fun expression of these iconic things…. I don't really think it takes away from the original,' Lividini said, noting that the dupe iconifies the 'original even more.'
One Wall Street observer said anyone buying a dupe knows that he or she is not buying the authentic item from the brand. This person doesn't see these sales taking away from the brand because anyone willing to spend the money for the original branded version, such as a true Hoka shoe, is buying more for comfort and quality and not necessarily for its looks.
A study from authentication firm Entrupy Inc. on the 'State of the Fake' concluded that the line between a dupe and fake is blurry, making enforcement both murky and uneven. According to the report, the most 'faked brand' overall in sneakers is Alexander McQueen. In Great Britain, it is a Dior sneaker, while in Netherlands, it is New Balance. And in Germany, Adidas is the most copied sneaker brand. It also said that fabrication has moved beyond logo placement and sole shape, and that there's been refinement at 'every level of construction.'
The Entrupy report also noted the rise in what it calls 'rep culture,' a high-quality, intentional fake sneaker designed to closely imitate the original release. It also noted how across TikTok and YouTube there were detailed guides last year telling one how to 'upgrade' reps by swapping insoles and other modifications, a 'subculture of normalizing rep customization as a kind of sneaker DIY.'
Most recently, Nike Inc. fought back, and its settlement with Shoe Surgeon has set some boundaries on sneaker customization.
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