Can an Influencer be Held Responsible for the Products They Promote?
Authored by Maddie Dugan, CIPM and Michele Martell, Esq.
A jury in the Central District of California recently returned a unanimous verdict against an influencer and his brand for trademark infringement and counterfeiting. The award in the case of Nike, Inc. v. Nicholas C. Tuinenburg, 2:23-cv-10495 (C.D. Cal.) was $11 million. The influencer didn't manufacture a single fake product, but he promoted them, and the jury found him responsible.
Tuinenburg ran Discord servers as active marketplaces, maintained a public spreadsheet cataloging replica sources, and took $1.2 million from counterfeit shipping platforms over four years. The jury awarded Nike a total of $11 million for the counterfeiting and infringing of the DUNK trademark and associated trade dress (the look and feel of the product), consisting of $8 million in Lanham Act statutory damages for direct and contributory counterfeiting, along with $3 million in punitive damages.
If your first reaction is that this doesn't apply to you, the broader context absolutely does. The legal framework the court used to reach that verdict extends well beyond obvious bad actors.
It covers affiliate deals, equity stakes, and sponsored posts. It applies to licensing programs that have never signed a single influencer. And it does not require anyone to know they're doing something wrong.
Can You Be Liable for an Infringement You Didn't Commit: The Liability Framework Most Creators Have Never Heard Of
Many people in the creator economy have never encountered the terms "contributory infringement" or "vicarious liability" since most brand deals get negotiated around deliverables, posting schedules, and payment terms. The IP question rarely comes up, and when it does, the financial consequences tend to be disproportionate to everything else about the deal.
Federal trademark law recognizes two forms of secondary liability, meaning liability for infringement you didn't directly commit.
Contributory infringement applies when a party intentionally induces another to infringe, or continues to supply goods or services despite knowing that infringement is ongoing. The Ninth Circuit has held that specific knowledge of infringing activity is required – general awareness of potential infringement isn't enough on its own. What courts have also held is that deliberately avoiding confirmation of something you suspect is legally equivalent to knowing it. A creator who receives complaints about a brand they're promoting and stops asking questions is building a record that may be used against them.
Vicarious infringement applies when a party:
has the right and ability to control the actions of a direct infringer
receives a direct financial benefit from that infringement
Both elements must be present, but for influencers with equity stakes in a brand, both prongs may be easier to establish than most people realize. A grant of equity can be seen to satisfy financial benefit, while involvement in content approval, campaign direction, or brand messaging may create a factual basis for control.
Under the Lanham Act, secondary infringers and direct infringers can face equal liability for damages. There is no discount for being downstream.
Does Calling Something a Dupe Actually Protect You?
A widespread, but incorrect, belief in the creator economy is that labeling something a "dupe" provides legal cover. However, the word "dupe" does not appear in the Lanham Act, and it carries no safe harbor status. In a willfulness analysis by a court, using that word or similar phrasing might signal that the speaker understood they were referencing a product designed to resemble another. That signal can work against the speaker, not for them.
Under contributory infringement doctrine, an influencer who actively promotes infringing goods, provides purchasing guidance, and drives sales through affiliate links could be seen to be materially contributing to each infringing transaction. The performance claim, the demo, and the affiliate link together can form a stronger material contribution argument than any one element alone.
The specific language creators use to promote dupe products can carry legal weight. Phrases like "you can't tell the difference" or "better than the original" can be read in a courtroom as performance claims about an infringing product.
The trade dress ruling in the Nike case is likely to have a significant impact on the dupe economy. The verdict confirmed that registered trade dress protects a product's overall silhouette, proportions, and paneling independently of its word marks and logos. A jury agreed that copying the look of a shoe without copying its branding still constitutes infringement. That principle reaches well beyond sneakers.
How Much Legal Risk Does an Affiliate Deal Actually Carry?
Affiliate marketing structures are standard, and ordinary referral arrangements are not inherently a legal problem. However, they can also represent a financial relationship, which can be considered when determining whether the creator has received a financial benefit.
A flat affiliate commission establishes a financial connection between the creator and each sale. A tiered commission structure that rewards volume may start to look like active participation in the sales operation rather than a referral. An exclusive discount code can further establish an operational relationship between creator and brand. Each element, individually modest, may compound the overall exposure of the creator.
The distinction between a brand-direct affiliate link and a link to a large third-party marketplace matters structurally. A link to a brand's own website, combined with a commission arrangement, creates a closer agency relationship than a link to a major retailer, where vendor compliance infrastructure may shift some of the liability. The closer the relationship, the more the brand's conduct might be attributed to the influencer in a legal analysis.
Equity stakes occupy a different category. Once a creator holds equity, the financial benefit prong of vicarious liability is largely established by the structure of the deal itself. The degree to which a creator shaped content, approved campaigns, or directed messaging then becomes the primary factual question for the control prong.
If Your Brand Has No Influencer Deals, Why Does This Case Still Matter?
Consider a specialty outerwear brand with a distinctive quilted jacket silhouette that's become recognizable enough to anchor a licensing program. A luggage manufacturer licenses the trade dress for a travel line. A footwear company produces a collaboration. A childrenswear licensee makes a kids' version. The brand has deliberately avoided influencer partnerships. They consider themselves insulated from creator economy IP problems.
Meanwhile, a lifestyle creator with several hundred thousand followers posts about a quilted jacket she found on a wholesale sourcing app. A Guangzhou manufacturer copied the silhouette closely enough that multiple comments ask whether it's the original. She replies that it looks just like it, for a fraction of the price, and includes an affiliate link. The post accumulates hundreds of thousands of views.
The licensing director finds out not through any monitoring system, but because a footwear licensee mentions that a retailer pushed back on a reorder, citing the same look available for less online. What follows touches every dimension of the licensing operation.
The trade dress those licensees paid to use is now publicly associated with a low-cost product. Premium positioning, which the licensees purchased the right to benefit from, erodes through a channel the licensing director has no enforcement protocol for. The footwear licensee, whose minimum sales commitments are tied to royalty floors, may come back asking to renegotiate. A commercial dispute is now moving that originated with a post the licensing director never saw.
Standard brand monitoring catches direct name mentions. It doesn't flag when a silhouette appears on a wholesale sourcing app, when affiliate traffic flows to a lookalike, or when consumer confusion accumulates across comment sections. The creator economy moves faster than most IP operations teams. In trademark law, a mark that goes unenforced can be weakened.
None of this requires the brand to have a single influencer partnership. The creator economy generated the problem without them.
What Does It Mean For a Talent Manager When a Brand Deal Creates IP Exposure?
Talent managers are accustomed to protecting clients from bad deals. The infrastructure for that work: contract templates, rate cards, approval workflows, exclusivity terms. IP due diligence before a brand partnership is a different category of question, and many management agenciesdon't yet have a formal process for it.
The Ninth Circuit has held that “willful blindness,” defined as suspecting wrongdoing and deliberately failing to investigate, can form the basis of an infringement finding. A manager who negotiates a brand deal without asking basic IP questions is building a factual record that could support that argument. The control a manager exercises over deal structure and contract terms also creates a factual basis for thecontrol prong of vicarious liability. Managers who negotiate brand deals, take a percentage of proceeds, and participate in content approval may occupy a closer legal position to the brand relationship than they may realize.
Questions that should be standard before any brand partnership or equity deal is signed: Has the brand conducted trademark clearance on its product design? Has it received any cease-and-desist letters, or is it in active IP litigation? Who manufactures the product and under what supply chain agreements? If equity is part of the structure, has IP counsel issued a freedom-to-operate opinion?
Additional contractual protections include:
an IP warranty from the brand confirming its products do not infringe third-party rights
an indemnification clause protecting the creator if a third party brings a claim arising from the brand's products
audit rights if the creator holds any equity in the business
What Happens Legally the Moment You Receive a Cease-and-Desist?
Occasionally in creator communities, cease-and-desist letters are treated as corporate aggression, and the instinct is to rebuff them and keep operating. That response is at odds with what receiving one actually does to a creator's legal position. If there is a legal issue, ignoring a C&D letter will make your problems worse, and you are advised to reach out to legal counsel.
A C&D letter is the formal moment at which a party is put on notice that someone with rights believes their IP is being infringed. What you do immediately afterward matters as much as what you were doing before it arrived.
In the Nike case, Tuinenburg edited Instagram posts after Nike's legal correspondence to change "Division Dunks" to "Division Lows." Nike argued at trial that this was a deliberate attempt to obscure the connection between his product and the Dunk silhouette. In a willfulness analysis, that kind of edit reads as evidence that the defendant understood the problem, and chose to work around it rather than stop.
Continuing to operate after receiving notice helped convert the legal impact of a modest operation into an eight-figure judgment. The willfulness finding, and the statutory damages it unlocked, rested on the fact that operations continued after notice was given. How you respond in the days after receiving a C&D becomes part of the record a court could eventually read.
What Should Creators and Licensing Directors Actually Do Before Signing?
For creators and their managers, the pre-deal checklist is practical.
Ask whether the brand has received any IP-related legal claims. Search the USPTO database for the brand's trademark registrations and for any conflicting third-party marks. This resource is publicly available at www.uspto.gov. If equity is part of the deal, require a formal IP opinion letter before signing. Ensure the contract contains a warranty from the brand and a broad indemnification provision in your favor for third-party claims arising from their products.
For licensing directors, the questions are more structural.
Is the trade dress underlying your licensing program formally registered, or has the program been relying on common law rights? Does your monitoring infrastructure cover creator-generated content beyond direct brand mentions? Do your licensee agreements have provisions for what happens when a third party erodes their market through lookalike promotion? When was your enforcement protocol last reviewed against the pace at which digital IP erosion actually moves?
Intellectual property issues can arise suddenly and present you with unexpected risk or liability. The key question is whether you've looked at your brand relationships through the lens of exposure before a third party does it for you. If you have an established relationship with counsel, you are in a better position to consider, manage and avoid legal risks.
FAQ
Does dupe content automatically create legal liability?
Labeling something a dupe provides no legal protection. Courts examine whether the content materially contributed to infringing sales through performance claims, affiliate links, purchasing guidance, or demonstrated personal use. A general observation that two products look similar is a different thing from a post that includes a link, a demo, and a claim that consumers cannot tell the products apart.
If I only made a small amount of money from a brand deal, does that limit my exposure?
Under the Lanham Act's statutory damages framework, actual revenue is not the basis for the damages calculation. Courts can award amounts that far exceed what an infringer made, particularly when willfulness is established.
I received a cease-and-desist about something I promoted. What should I do?
Stop promoting the product immediately and consult IP counsel before responding or taking any other action. A C&D establishes the moment at which your knowledge of a potential infringement claim began. Continuing to promote after receiving one may provide the factual basis for a willfulness finding.
Can a talent manager be held personally liable for a brand deal that turns out to infringe a trademark?
It depends on the degree of control the manager exercised and the financial benefit they received. A manager who negotiated the deal, takes a commission on proceeds, and had input into content or campaign direction has a factual basis for a vicarious liability argument. This theory has not been fully tested against talent managers in a creator economy context, but the legal framework that would reach them is established.
My brand doesn't have any influencer partnerships. Why does this matter to us?
The creator economy generates IP consequences for brand owners who never chose to participate in it. A creator who promotes a lookalike product to a large audience can erode a licensee's market, degrade the positioning of a protected trade dress, and create consumer confusion without any affiliation with the brand whose IP is being affected. Monitoring for that, enforcing against it, and ensuring licensee agreements contemplate it are now baseline responsibilities for any licensing program with a recognizable trade dress.
What does "willful blindness" mean in this context?
Deliberately avoiding confirmation of something you suspect is legally treated the same as having actual knowledge of it. A creator or manager who receives signals that a brand relationship may involve infringing products and chooses not to investigate is not protected by that choice.
This article is for informational purposes only and does not constitute legal advice. If you are reviewing a brand partnership, equity collaboration, or licensing program and have questions about IP exposure, Martell Media House PLLC works with content creators, managers, and brand licensing programs on these issues.