A dupe clothing store called “mumumelon” recently appeared in London, mimicking activewear giant lululemon. This was a deliberate strategy by mumumelon to publicise environmental activism relating to lululemon’s business.

In an age where social media can turn a brand campaign viral overnight, some activists and businesses are deliberately imitating well-known brands to attract attention and amplify a message. This presents a new challenge for brand owners seeking to protect the integrity of their trade marks. We consider the actions of mumumelon and how brand owners can respond to activist dupe brands.

The mumumelon challenge

The activist “dupe” brand mumumelon launched a highly visible campaign, including an online shop and a physical store in central London near a lululemon store. Mumumelon describes itself as a fake brand with real products made sustainably, which is designed to call out lululemon’s greenhouse gas emissions. Mumumelon’s website audaciously states that it has copied lululemon’s designs and “made them less terrible for the environment”, with taunts such as “bring on the lululawyers”. It also states that mumumelon’s aim is not to compete with lululemon and that it is “trying to embarrass [lululemon] gently, in a friendly, encouraging way”.

The launch of mumumelon reportedly came after efforts by its organisers, Action Speaks Louder, to engage with lululemon about improving the environmental impact of lululemon’s business.

Lululemon reportedly issued a media response to mumumelon’s campaign, highlighting its environmental impact goals and reductions in greenhouse gas emissions, noting that it had been in conversations with Action Speaks Louder and was disappointed with the action taken by the group. It added that it welcomed further dialogue with stakeholders.

And since the campaign, lululemon has announced a new investment in renewable energy initiatives aimed at reducing supply chain emissions. Although the company has not explicitly positioned this as a response to the mumumelon campaign, the timing is notable.

Interestingly, mumumelon’s launch follows lululemon’s own steps taken to crack down on dupes. This included lululemon filing a trade mark application for “LULULEMON DUPE” in the USA and holding a “Dupe Swap” event in Los Angeles.

From satire to sensation: the new challenge for brands

Parodies of well-known brands are nothing new - but the viral nature of social media has changed the scale and speed at which they spread and therefore presents new challenges for brand owners. This phenomenon may be particularly relevant in New Zealand, where smaller businesses, creators and advocacy groups can quickly gain visibility online when challenging larger and more established brands (legally or otherwise).

How brand owners can respond in New Zealand

In New Zealand there are several possible legal grounds available that could be used to respond to dupe brands. For example, a dupe could potentially:

• infringe a brand owner’s trade mark registrations;

• infringe copyright in a brand owner’s logos and advertising materials;

• infringe rights in registered designs for the shape or pattern used for a product; and/or

• mislead or deceive consumers, in breach of the Fair Trading Act 1986 and amounting to passing off.

From a practical perspective, brand owners should have a comprehensive suite of intellectual property protections in place to deter dupe products from trying to take advantage of their reputation and brand goodwill or of their product.

However, even where the legal position is strong, enforcement may not always be the best first response. Brand owners should consider their legal, commercial and reputational objectives before deciding how to engage with an activist dupe campaign.

A brand owner will have reputational issues to consider, particularly if an activist dupe’s agenda relates to sensitive topics or critiques the target brand. There is a risk that a heavy-handed response to an activist dupe could bring further media attention to the cause that the activist is trying to promote. This could result in adverse publicity and reputational harm to a brand owner. And, as with the brazen mumumelon example, there may be activist dupes that are willing to accept the legal risk in order to publicise their agenda.

In today’s social media driven world, a brand owner’s response should therefore also be guided by its media and commercial strategies. While not always delivering a satisfying legal result, sometimes ignoring the dupe altogether results in media attention quickly dying.

The impact of a parody and satire exception for New Zealand

Not every activist dupe will necessarily be a parody. Some campaigns may simply use a well-known brand as a vehicle to communicate a message or criticism. However, where parody or satire is involved, further changes may be on the horizon in New Zealand.

New Zealand could soon introduce a parody and satire exception for copyright infringement. The Copyright (Parody and Satire) Amendment Bill proposes to introduce a new fair dealing exception for the use of literary, artistic, dramatic, and musical works for parody and satire (see our recent article on the Bill here). This Bill has cross-party support and seems likely to make its way into law.

If introduced, this exception could open the door to more widespread commercial use of parody and satire. On the one hand, this could allow new opportunities for businesses to push the creativity of their advertising campaigns and media content. But it also means that brands could become more vulnerable to dupes claiming to be protected by the proposed parody and satire exception.

The change proposed under the Bill would not legitimise all commercial use of a copyright work under the guise of parody or satire. The exception would only apply to “fair dealing”. And it would not provide a defence to infringement of other intellectual property such as registered trade marks and designs. Brand owners may therefore still have legal grounds to address parodies of their brands, and potential dupers should be mindful of the limitations before assuming they will have a defence.

Get in touch

Please get in touch with one of our experts if you require any advice relating to dupes, protecting your brand or any other intellectual property queries.

Special thanks to Pippa Saunders for her assistance in writing this article.