Imagine That IP Law Blog

For many consumers, finding a good “dupe” is not a mistake. It’s the goal. Rather than being tricked into believing they are buying a luxury product, shoppers increasingly seek affordable alternatives, knowing that they are not buying the high-end product being imitated. This trend creates a practical problem for all brands, especially fashion brands, where a product’s appearance may be an important part of its appeal and brand identity. Trademark infringement traditionally turns on whether consumers are likely to be confused. If consumers know they are buying a dupe, is trademark law still a viable tool for brands trying to fight back? The answer is yes, but trademark rights may need to be part of a broader intellectual property strategy.

A “dupe” is generally understood as a lower-priced product that intentionally resembles or is inspired by a more expensive or well-known product, while being sold as a separate product rather than as the genuine article. “Dupe” is a consumer and marketing term, not a legal dupe. A dupe differs from a counterfeit, which purports to be a genuine product. Because dupes may be openly advertised as alternatives, social media has amplified this distinction, and dupe recommendations have become a fixture of TikTok and influencer culture.

This marketing matters because trademark infringement turns on likelihood of confusion. However, “confusion” means more than simply mistaking a dupe for the genuine product. The issue is whether consumers are likely to be confused about who made the product or whether the original brand sponsored, approved, licensed, or is affiliated with it. Consumers’ awareness that they are purchasing a dupe may reduce confusion about who made it, but consumers may still be confused about the original brand’s involvement. In other words, a consumer may know that a product is not the original while still believing that the original brand authorized, licensed, sponsored, or approved it.

Recent cases illustrate how differently these issues can play out.

In TushBaby, Inc. v. Jinjiang Kangbersi Trade Co., the dispute involved TushBaby’s hip-seat baby carrier and competing HKAI-branded carriers sold on Amazon. The competing products closely replicated aspects of the TushBaby carrier’s overall appearance, including its rounded front pouch, wraparound straps, and side pockets. Consumers referred to the competing product as a “dupe” or “knock off,” yet the court found that the evidence supported a likelihood of consumer confusion. The case illustrates that consumers’ recognition that a product is an imitation does not necessarily eliminate the possibility of confusion.

By contrast, in Benefit Cosmetics LLC v. e.l.f. Cosmetics, Inc., e.l.f. used Benefit’s Roller Lash mascara as inspiration for its much lower-priced Lash ’N Roll product. Both products used black-and-pink packaging, and e.l.f. intended consumers to make a connection between the products. Nevertheless, the court found that Benefit had failed to show more than a hypothetical likelihood of consumer confusion. Differences in branding, packaging, price, and the way the products appeared in the marketplace weighed against a finding of likely confusion.

Together, the cases suggest that neither consumer awareness of imitation nor evidence of intentional copying resolves the confusion question.

The key question is a practical one: what will consumers actually think? A seller can intentionally imitate a well-known product without necessarily leading consumers to believe that the original brand made it. A dramatically lower price, a different name, separate markets, and explicit marketing as an alternative may weigh against confusion because they suggest that the products come from different sources. Still, a consumer could understand that the product is not the original but mistakenly believe that the original brand licensed, sponsored, approved, or collaborated on it.

This tension is currently playing out in dupe litigation, including Stanley’s case against Five Below and Squish Beauty’s case against Coty. These brands are arguing not only that consumers may be confused about who made the product, but also that they may believe the original brand sponsored, approved, authorized, or licensed it. The plaintiffs are also asserting trade dress and design patent infringement, unfair competition, and other claims rather than relying on trademark infringement alone. That broader approach reflects an important practical point: where consumers recognize that they are buying an imitation, claims focused only on traditional source confusion may not tell the whole story. Although the court in Benefit Cosmetics v. e.l.f. Cosmetics recognized that “some dupes could potentially cross the line and engender consumer confusion,” ongoing dupe litigation may show where courts draw that line.

What this means for brands
The rise of intentional dupe purchasing has exposed a limitation of relying on likelihood of confusion alone. However, trademark law remains a viable tool against dupes, particularly where the imitation creates confusion about sponsorship, approval, affiliation, or licensing. But trademark rights alone may not always be enough. Fashion brands that expect that their success will be copied should build multiple layers of intellectual property protection before imitators arrive:

• Protect distinctive product appearance, packaging, and branding early.
• Consider design patents and copyright protection where the product design qualifies. These rights may provide additional ways to address copying of product appearance or design even where consumer confusion is difficult to establish.
• Preserve evidence showing how consumers associate distinctive product features with the brand.
• Maintain consistent and distinctive design and branding elements that consumers can learn to associate with the brand.

Not every imitation necessarily presents the same business or legal threat. The more important question is whether the copying threatens legally protectable brand value—by creating confusion, appropriating distinctive design elements, or weakening the association between those elements and the brand.

A diversified intellectual property portfolio can give fashion brand owners additional protection when trademark law alone falls short. In the dupe economy, the best defense may be an IP strategy developed before a successful product becomes a target for imitation—not after the copy reaches the market.