Clothing company Djerf Avenue has been duped. What was supposed to be a strategic sweep against infringing actors turned into a PR crisis for the brand and its owner, Matilda Djerf. We talk about why some creators wound up in the legal crosshairs of the brand and if the law has addressed dupe influencers yet.
Djerf Avenue Drama Explainer: Why Are Creators Mad At Djerf Avenue And Its Owner?
Earlier this month, Djerf Avenue, through its intellectual property firm, reported numerous creators’ videos for trademark or copyright infringement violations. Some of these videos included creators who mentioned a dupe of Djerf Avenue signature pajamas with a fruit pattern.
Others talked about Djerf Avenue products and how the dupes did not live up to the hype. One creator reported that her video was not even talking about a Djerf Avenue product but instead was an outfit inspired by Matilda Djerf.
Djerf Avenue is an elevated basics brand inspired by its owner, Matilda Djerf. Prior to launching this brand, Djerf posted content about her outfits, some of which were inspired by or featured dupes of designer brand items.
Following this influx of intellectual property reports, creators took to social media demanding answers from Djerf and Djerf Avenue about the following: Why is a brand allegedly inspired by its owner’s wardrobe going after creators for promoting dupe products? Why go after creators who defended the quality of Djerf Avenue products over the dupe products?
Djerf Avenue’s Statement
Djerf later deactivated her personal TikTok account. Days later, Djerf Avenue issued the following statement on its Instagram Story:
Unfortunately, there has been a recent surge in websites selling products with our design and owned prints/artworks. In light of this, and to safeguard our prints and the individual print designers — we have an external intellectual property (IP) firm monitoring copyright infringements. However, we realize that this has inadvertently impacted individual accounts.
We have promptly instructed our IP firm to halt reports from individual accounts and focus on third-party sellers of these items. Instead of reporting the individual accounts, we will reach out to the responsible party behind the accounts when we see suspicious pirate copies and have a dialog with the content creator.
Note that the social media platforms themselves could still remove and report videos if it’s in violation with their infringement policies. We are committed to reaching out personally to anyone affected.
Following this statement, some creators posted about their interactions with the Djerf Avenue team. One creator called it a waste of time and another felt like Djerf Avenue agreed that their content did not infringe on their intellectual property. The creator later took down that video. However, none of these conversations resulted in Djerf Avenue retracting its report. There is a lot of confusion over how these reports are evaluated. Let’s break down why.
Part of some intellectual property firms’ brand protection strategy is monitoring social media sites for infringing content or counterfeits. This strategy often involves using technology to crawl social media sites to identify infringing content and report it.
An Inconvenient Truth About DMCA Takedown/Trademark Infringement Notices
Most people may not know this, but the reason why social media platforms have intellectual property reports on their platforms is because of a federal law, the Digital Millennium Copyright Act (DMCA).
The point of this law is to provide platform users a quick mechanism to report instances of copyright infringement while shielding social media platforms from being held liable for infringing activity on their sites. To retain this “safe harbor” from liability, social platforms must follow specific legal requirements outlined in the DMCA.
The DMCA process favors the person filing the report. That means platforms, by default (and by law), must take down content allegedly infringing on someone else’s copyright without question. The same is true concerning trademarks. While there isn’t a trademark counterpart to the DMCA, the processes for disputing a trademark violation on a social platform are identical.
While some creators may view that as the social media platform “taking a side,” it’s not up to the social media platform to decide whether a reported video is infringing before removing reported content. Ultimately, a court—not a social media platform—decides whether something qualifies as intellectual property infringement.
It is on the alleged infringer to appeal those reports to (hopefully) have their content restored through a counternotice. And if there is still a dispute after that, it’s on the reporting party to escalate this in court. What most people realize is that this reporting mechanism is a precursor to a lawsuit.
Most cases never get that far because most creators do not know how to respond. Instead, they believe it’s on the social platform or the reporting party to retract a report, just as in this Djerf Avenue scenario. However, there is no way to do that on most platforms.
Some Common Defenses To Intellectual Property Reports Involve Fair Use.
The most common defense to a DMCA report is fair use. Fair use means your use of a person’s copyright without their permission is exempt from a claim of infringement. There is a four-factor analysis we’ve previously discussed. Scenarios such as commentary, parody, educational use, or for the news are fair use.
Another common defense in referring to a brand name is trademark fair use. Trademark fair use recognizes instances where it’s acceptable to use a trademark name without obtaining permission, such as describing products (descriptive fair use) or referring to a trademark’s products (nominative fair use).
Consequently, if creators fail to appeal these reports, their accounts and content can be negatively impacted. Additionally, if creators receive multiple intellectual property violations, their accounts could be suspended or, worse, banned by the relevant social media platform.
Where Do Dupe Influencers Fit Into This Conversation?
Temu and DHGate aside, when some creators refer to something as a “dupe” they are not talking about counterfeits. They are cheaper alternatives to higher-end products that may bear some resemblance to their higher-end counterpart. However, they’re not trying to pass as the higher-end counterpart like a counterfeit would.
In the case of the Djerf Avenue controversy, the Amazon “dupe” is not holding itself out as a Djerf Avenue counterfeit with fake Djerf Avenue tags and designs. Instead, they look similar, say, a fruit design pajama set with some minor differences and sold under a distinct private label.
Dupe Influencers And The #Dupe Hashtag
Unsurprisingly, dupe influencers and the dupe hashtag have amassed tons of views and attention throughout social media. As of October 2023, #dupe alone has 5.8 billion views on TikTok. You could get even more granular with your search by finding specific #[brand name] dupe content.
The problem with this figure, though, is that you may come across some counterfeits under this hashtag. A report by the American Apparel and Footwear Association even refers to influencers promoting counterfeits as “dupe influencers.”
If influencers were promoting Djerf counterfeits, they’d likely end up like those influencers who promoted designer counterfeits sold on Amazon. Thankfully for those creators, Amazon settled that case.
Since this lawsuit, Amazon has filed multiple joint counterfeit lawsuits with brands. We still have not seen a court case in the United States by a brand against a party (like a magazine or influencer) promoting dupe products.
Probably because it’s not as likely that a dupe (as we are defining it here) would qualify as a counterfeit.
Regardless, creators should be careful about discussing dupe products because of platform policies. According to Amazon Associates Anti-Counterfeit Policy, creators are prohibited from discussing dupes. Even though we still see the Bottega earring dupe videos on our feeds.
Although we have yet to see a court case about this exact issue, promoting dupe products that are not counterfeits, this will not be the last time we hear about a brand engaging in a similar strategy.
DISCLAIMER:
The content discussed in this article is for educational purposes only and not for the purpose of providing legal advice. Use of and access to this article does not create an attorney-client relationship between Curator Counsel PLLC and you. The material and information presented should not be relied upon or construed as professional advice. You should not take action based upon this information without consulting legal counsel.
