The Copycat Conundrum: Trademark Law and the Rise of Dupes

10 Designer Fashion Dupes That Look Like The Real Deal - SHEfinds

Dupes: The New Viral Trend

It starts with a scroll. A swipe through TikTok or Instagram reveals a flood of look-alike handbags, sneakers, and perfumes, each mimicking a luxury silhouette for a fraction of the price. Comment sections call them “dupes,” a once dismissive label that has evolved into a badge of clever consumerism. In a culture that values access as much as authenticity, owning a dupe has become a statement of resourcefulness rather than imitation. 

What began as an aesthetic trend has become a legal and economic conflict over how far imitation can go before it undermines originality. Fashion and beauty industries, which already operate in a gray zone of intellectual property protection, now face a marketplace that reproduces and monetizes designs faster than courts can define their boundaries. For brands, the business impact is profound. Beyond lost sales, the proliferation of dupes decreases brand equity and diminishes the identity that trademarks are meant to preserve, while companies built on imitation profit. 

The rise of dupe culture reveals how twentieth-century trademark law is struggling to govern a twenty-first-century market. The Lanham Act's traditional protections against confusion and dilution were designed for an era of physical storefronts, not one where social media can turn imitation into influence overnight. Today, replication is marketed as accessibility, and imitation is redefined as innovation. This shift has collapsed the distinction between original and derivative, undermining brand identity and weakening the law’s ability to protect creative expression. As dupe culture becomes a viable business model and cultural norm, the consequences extend beyond legal theory. It challenges how brands compete, how consumers assign value, and how authenticity itself is defined in modern fashion and beauty. 

The Law Behind the Look 

At the heart of the legal conversation surrounding dupes is the tension between creative imitation and a limited scope of protection afforded by United States copyright and trademark laws. The Lanham Act, enacted in 1946, is the cornerstone of U.S. federal trademark law, governing trademark protection and regulating unfair practices in business. The Act serves the dual purpose of protecting consumers from confusion and deception about products, and protects businesses from the misuse of their brand identity. However, as dupe culture shows, these protections are becoming increasingly inadequate to address the realities of modern imitation, where digital platforms promote look-alike products faster than the law can respond. 

Under the provisions of the Lanham Act, trade dress, which encompasses the overall visual appearance and aesthetic characteristics of a product or its packaging, is afforded legal protection. Trade dress protection is categorized into two distinct types: product packaging, which refers to the design and presentation of a product's external packaging, and product design, which relates to the specific attributes and configuration of the product itself. Both forms of protection play a crucial role in maintaining fair competition and fostering consumer trust in the marketplace. A notable example of product packaging trade dress is the Tiffany Blue jewelry box. It only takes one glance for a consumer to recognize they are receiving a gift from Tiffany & Co. The distinctive color was trademarked in 1998 and later standardized as a custom color by paint manufacturer Pantone exclusively for Tiffany & Co. in 2001. Tiffany & Co., exemplifies the effectiveness of trademark protection; however, such success can be difficult to achieve, especially in the fashion and beauty industries where aesthetic similarity is driving consumer interest.   

Compared to product packaging trade dress, product design trade dress is much harder to enforce and is the predominant issue in the legal conversation of dupes. To successfully show a breach of trade dress laws, brands must show that their product design elements are distinctive, non-functional, and that the defendant's use of the design elements is likely to cause confusion for consumers that associate the design with a certain brand. For example, in an action brought in Conopco, Inc. v. Cosmair (Conopco, Inc, being Calvin Klein Cosmetics Company), the court denied an injunction to stop a competitor of the company from releasing a similar perfume with a similar name and style of bottle. The court made clear that to establish protection under trade dress laws, the Plaintiff (the creator or corporation) has the burden of proving that the main purpose of the product feature at issue is to identify the brand, not the product itself. This standard makes it increasingly harder for brands to claim protection over styles that naturally evolve through trend cycles and viral marketing, creating a cyclical trend culture that the dupe market thrives on.

In Wal-Mart v. Samara Brothers, which remains the controlling precedent for unregistered trade dress today, the Supreme Court made clear that product design can never be inherently distinctive, it must acquire distinctiveness through secondary meaning. Secondary meaning is the “mental association by a substantial segment of consumers and potential consumers ‘between the alleged mark and a single source of the product.” The court's decision, which relies on the idea of secondary meaning, promotes competition by making it more difficult to protect product design. However, in the context of dupe culture this rationale backfires. Once a design enters the cultural sphere and becomes recognizable enough to develop  this “secondary meaning,” it is already so widely copied that distinctiveness is diluted. 

In 2011, the Second Circuit issued a pivotal decision on the issue of product design trade dress. In, Christianv. Yves Saint Laurent Am. Holding, Inc., the court recognized Louboutin’s iconic red soles as a valid trademark. The Second Circuit's ruling hinged on their analysis of Louboutin’s advertising expenditures, media coverage, sales success, and consumer surveys. The USPTO was ordered to modify the brand’s trademark to include the red lacquered outsole contrasting with the upper of the shoe. This ruling, while not changing the high standard needed to establish product design trade dress, shows a rare success story for trademark protection in the fashion industry. The rarity of such decisions by the courts emphasizes the imbalance between trademark protection in theory and its practical limitations for brands navigating a culture of replication. 

Post Louboutin success, more large brands have filed lawsuits claiming that trade dress protections have been violated against their companies designs. The Deckers Outdoor Corporation, parent company of UGG Boots, filed a suit against retailer Quince for copying their popular  moccasin boots. UGG’s complaint against Quince alleged that Quince violated trade dress with three of their boot designs that copied UGG’s “moccasin and clog slipper silhouette and decorative collar stitching.” The court ruled that these features were too generic to be protected under trade dress law. This holding is a recurring problem; as designs become culturally popular and commercially successful, they lose their distinctiveness needed for protection, leaving brands exposed to the imitation trademark law was meant to obviate.  

WePresent | Christian Louboutin

Has Imitation Become Industry Standard? 

What begins as artistic innovation can become the blueprint of an entire industry raising the question; when does a creative idea cease to be intellectual property and enter the cultural sphere? The decision in the UGG case illustrates the dilemma brands are facing in the modern day. Brands cannot rely on trade dress laws to protect distinctive features or styles of a product. The thriving culture of replication reveals a deeper flaw within the Lanham Act's protections, its inability to preserve originality once a design enters the cultural sphere. 

Styles and designs that brands create and become popular are now victims of “dupe culture” perpetuated by fast fashion and smaller brands trying to stay competitive in the market. A popular design in fashion risks becoming the generic standard causing it to lose any power it may have had to be protected under trade dress laws. The success of a design is undermining its legal protections, exposing a concerning paradox. 

Competing brands and fast fashion markets are exploiting this loophole by creating dupes meant to emulate popular products, often selling them at a cheaper price point than the original. While some consumers may welcome the cheaper alternative to a popular style, this practice is challenging the core purpose of trademark law: to protect brand identity and original design. Even though courts have held that generic style design protections are limited under trade dress laws, this creates an interesting premise considering the original purpose of trade dress law was to protect businesses and consumers from deceiving products that misuse brand identifying styles. Dupe culture highlights how trademark law’s protective framework is more suited for a slower market and is unable to keep up, allowing imitation to drive modern product creation. 

The Ethics of a Dupe

While dupe culture raises immediate concerns about originality and design ownership, it also brings forward deeper ethical concerns regarding imitation, authenticity and consumer deception. If a brand openly markets its product as a dupe or “homage” to a more expensive original, does this pose an ethical issue? Some brands, like Quince or Few Moda, using the guise of accessibility or sustainability, go so far as to advertise that their items come from the same manufacturer as luxury labels (Alice + Olivia, Theory, Ted Baker, etc.). This strategy blurs the line between transparency and misrepresentation, challenging the Lanham Act’s aim to prevent false advertising and protect brand identity. Should the USPTO or courts exert greater enforcement over brands that admit to producing dupes?

This phenomenon is a rapidly growing practice in the beauty industry. Front runners like E.l.f. Beauty Inc. and MCoBeauty, have built their business model on providing consumers with affordable dupes. E.l.f. markets itself as, “a different kind of company that disrupts norms, shapes culture and connects communities, through positivity, inclusivity and accessibility,” leaning into dupe culture as part of its identity. The company has posted record profits and recently acquired influencer-backed brand Rhode Skin, signaling the commercial viability of this model. Yet, even when the imitation is “honest,” there are legal and ethical risks. Courts may view such marketing as suggesting false advertisement or association, potentially giving rise to unfair competition or false advertising claims under the Lanham Act. When imitation is both acknowledged and monetized, this gives rise to a category of ethical infringement that the courts now have to grapple with. 

Meanwhile, commentators note that dupe-based business models walk a fine line between inspiration and exploitation, and often depending on the nature of the imitation. The rise of digital advertising has brought this issue to the forefront of IP law, and while designers take issue with the ethical implications, investors are finding the “dupe model” to be quite lucrative. 

With consumers driving market priorities and moving the needle toward the validity of the dupe model, it would seem there is a tension as to whether the law can prioritize both fair competition and fair compensation. This misalignment of value, where imitation is rewarded and originality becomes irrelevant, illustrates how dupe culture is pushing the market towards replication, undermining traditional functions of trademark law

Digital platforms, like Amazon and Tik-Tok, through user- generated content and marketing have democratized trend creation and are encouraging consumers to prioritize ‘deals’ over the real deal. Powerhouses in the fashion and beauty spaces, both Amazon and Tik-Tok have found ways to translate views into direct tangible sales, with the respective creations of the Amazon direct affiliate link and the Tik-Tok shop. Now more than ever, brands are engaging with the digital community via influencer campaigns and collaborations in order to combat the dupes being pushed by the digital algorithm. In order to combat the delay in trademark enforcement brands are going on the offensive and 

When luxury brands known for being elusive choose not to engage, the algorithm churns out dupes. Luxury fashion houses once defined by exclusivity, like Hermès, are not immune. The brand’s iconic Birkin bag, long regarded as a symbol of unattainable luxury, has inspired a viral wave of imitators branded as “Workins,” or “working-class Birkins.” Championing accessibility,  influencers and celebrities, have helped normalize imitation under the guise of democratization. This reframing poses an important cultural question, being that creative legitimacy is socially constructed, is the model of high price barrier to entry still viable for luxury brands? This question  captures the modern paradox of trademark law for the fashion and beauty industries; as designs become democratized through viral culture and sanctioned by investors, the very success that cements their cultural impact also erodes their legal protections. 

Looking Forward: The Future of Fashion Imitation and Innovation  

The evolution of “dupes” in fashion law reveals a widening gap between creative innovation and legal protection. While trade dress laws under the Lanham act aim to prevent consumer confusion, modern fashion trends move faster than the law can adapt. As brands like Louboutin and UGG have discovered, once a design or aesthetic becomes part of the cultural mainstream, it risks losing the distinctiveness that once set it apart. Dupes may democratize access to style, but they also blur the line between inspiration and imitation, forcing courts and designers to confront the limits of  current trademark standards in growing digital culture that rewards replication. 

As technology, globalization, and consumer behavior continue to evolve, so too will the legal questions surrounding fashion dupes. The next frontier will likely involve integrating AI-generated designs, digital fashion (NFTs and virtual wearables), and cross-border enforcement under both U.S. and international IP regimes. The United States emerging trade policies may also contribute to the rapidly evolving landscape of fashion IP protection. Increased tariffs and stricter import controls may contribute to a crackdown on counterfeit or “dupe” products; posing a broader question, how will fashion and beauty corporations exercise control on policies that may affect their global operations? 

Ultimately, lawmakers and courts may need to reconsider how the trade dress requirements of non-functionality and secondary meaning, adequately reflect today’s rapidly evolving global creative economy. In the meantime, brands must focus on cultivating resilient brand identities by emphasizing distinctive qualities that promote brand recognition and consumer loyalty. In a world where every industry is facing "amazonification" and the rise of the TikTok “dupe,” protecting originality will require brands to give new meaning to creative legitimacy, while they wait for the law to catch up.

*The views expressed in this article do not represent the views of Santa Clara University.