By: Dana Lutz

 source: Sol de Janeiro U.S. v. MCoBeauty Ltd., No. 24-cv-08862 (S.D.N.Y. filed Nov. 20, 2024) 

Introduction

            Many industries have seen a significant spike in “dupes,” leaving the unanswered question of at what point this area of uncertainty crosses the line into legal liability. Dupes are products that closely resemble higher-end items, usually using similar ingredients or materials, but sold at a more affordable price.[1]  Primary industries experiencing a rise in dupes are beauty and fashion; however, the growth of dupes is prevalent across many other industries. Differing from dupes are counterfeits, which are illegal replicas of a product marketed as the original brand.[2] Although dupes do not automatically fall into the same illegal category as counterfeits, the more the dupe is similar to the original, leading to potential confusion, the more likely the dupe is to raise trademark infringement issues.[3]

            The significant increase in dupe purchases and mainstream acceptance can largely be attributed to social media, through advertising and influencers. While dupes are not necessarily a new concept, purchasing dupes was not as widely accepted as it is today, and members of previous generations were shopping for knockoffs under the radar.[4] Now, the vast majority of social media platforms have influencers proudly promoting dupe products, convincing viewers to purchase the dupe by comparing it to their high-end lookalike.[5] Large populations of consumers are now choosing to purchase dupes over the original product, even when they can afford the original.[6] In 2024, this led Gen Z shoppers to spend around $5 billion less on luxury brands than in 2023.[7]

            As dupe culture continues to soar and the tension between high-end brands and manufacturers of dupes grows, the courts must analyze at what point the dupes become unlawful.[8] Courts are beginning to explore this distinction in several cases, hopefully providing clarity in the near future.[9]

Legal Framework

            Currently, several avenues exist for brands to take legal action against dupes, including trademark and trade dress protections, design patent protections, and principles of unfair competition and false advertising.[10] Although these protections exist, the battle over dupes usually plays out through trademark and trade dress claims.[11] Under the Lanham Act, trademark infringement occurs when there is an unauthorized use of a registered mark that is likely to create confusion among consumers.[12] To establish trademark violation a plaintiff must prove 1) it has a legally protectable mark, 2) ownership of the mark, and 3) defendants use of the mark causes a likelihood of confusion.[13] Trade dress, also falling under the principles of the Lanham Act, primarily focuses on the “total image of a product,” including elements such as size, shape, color, texture, graphics, and sales tactics, and whether the defendant’s use of trade dress is likely to confuse consumers.[14] To succeed under trade dress infringement, a plaintiff must show 1) ownership of the trade dress, 2) the trade dress does not serve a functional purpose, 2) it is distinctive, and 3) the defendant’s use of trade dress causes a likelihood of confusion.[15] When analyzing whether there is a trade dress infringement, the touchstone of the analysis is the likelihood of confusion.[16] To make this determination, the court focuses on the degree of similarity between the products and if they are such that they will mistakenly lead consumers to believe they come from a common source.[17]

            While these protections exist, courts have repeatedly found dupes to be permissible under the law. Dupes intentionally exclude brand identifiers and sell their products at significantly lower prices, frequently leading courts to find that consumer confusion is unlikely.[18] This is evidenced in the 2024 decision from the Northern District of California in Benefit Cosms. LLC v. E.L.F. Cosms., Inc.[19] In Benefit Cosms., Benefit Cosmetics LLC (“Benefit”) brought suit against E.L.F. Cosmetics, Inc. (“e.l.f.”), claiming trademark and trade dress infringement of Benefit’s popular mascara, Roller Lash.[20] E.l.f. released a similar product, Lash ‘N Roll, with similar packaging and functionality but at a lower price point.[21] The primary packaging of Roller Lash and Lash ‘N Roll can both be described as a black base, pink cap, and vertical text in the same shade of pink as the cap, with one noticeable difference being the textured cap on Roller Lash.[22] Additionally, e.l.f. “tested numerous potential formulas against that of Roller Lash to achieve the closest comparison.”[23] Despite the numerous similarities between the products, the court found that a likelihood of confusion could not be shown and therefore no infringement of trademark or trade dress.[24]

Under the trademark claim presented in Benefit Cosms., the court considered several factors, including “(1) strength of the mark; (2) proximity of the goods; (3) similarity of the marks; (4) evidence of actual confusion; (5) marketing channels used; (6) type of goods and the degree of care likely to be exercised by the purchaser; (7) the defendant’s intent in selecting the mark; and (8) likelihood of expansion of the product lines.”[25] The court found that the strength of the mark favored Benefit, as shown by Benefit’s commercial success and extensive advertising of Roller Lash. Additionally, the court leaned in favor of Benefit with respect to the proximity of the goods, finding them “essentially the same product for the same purpose, targeted to much the same consumer.” Despite this, the court found it insufficient to overcome Benefit’s deficiencies in the other factors.[26] Notably, the court described how Benefit failed to show more than a hypothetical likelihood of consumer confusion about the product or its source.[27] The court also analyzed the intent behind e.l.f.’s production of Lash ‘N Roll, noting that although e.l.f. admits to using Benefit’s Roller Lash as inspiration, it intended to create a cheaper alternative, as is foundational to dupes, and indicative of not having an intent to deceive the consumer.[28] The court further noted that although the packaging is similar, secondary packaging and the house marks distinguish the products.[29]  The court conducted a similar analysis under the trade dress claim and highlighted similar reasoning, again coming to the ultimate conclusion that Benefit could not establish likely consumer confusion sufficient to withstand a trade dress infringement claim.[30]

While the court in Benefit Cosms.  determined that Benefit could not succeed in its claims against e.l.f., the opinion concluded by acknowledging that some dupes can cross the boundary into consumer confusion, which could be sufficient to uphold trademark or trade dress claims.[31] While the court notes this is a possibility, it is still unclear at what point a dupe causes consumer confusion.

Current Cases

            Recent years have brought a growing number of cases regarding dupes. Prominent beauty and fashion brands are bringing claims against companies creating dupes, and a few of these ongoing cases will provide further insight into the requirements to prove consumer confusion.

Sol de Janeiro U.S. v. MCoBeauty Ltd.

In November 2024, Sol de Janeiro USA, Inc. (Sol de Janeiro) filed a complaint against MCoBeauty Pty Ltd (MCoBeauty) and other defendants, alleging false advertising, trade dress infringement, and unfair competition.[32] Sol de Janeiro bases its claims on MCoBeauty’s “knockoffs” of Sol de Janeiro’s extremely well-known and widely recognized perfume mists sold to millions worldwide.[33] Sol de Janeiro is alleging that MCoBeauty markets their fragrance as copies or duplicates of four of Sol de Janeiro’s popular fragrances.[34] Specifically focusing on the trade dress claim, Sol de Janeiro provides evidence that MCoBeauty’s product copies the overall unique look of Sol de Janeiro’s perfume mists by using very similar “coloring, packaging, bottling, labelling, and presentation.”[35] Sol de Janeiro further alleges that MCoBeauty copies Sol de Janeiro’s use of numbers in a nearly identical white font, with very similar border designs.[36] Furthermore, Sol de Janeiro alleges the products that unfairly copy and infringe Sol de Janeiro’s trade dress risk consumer confusion as to the source or sponsorship of the goods.[37]

In their answer, MCoBeauty denies all allegations of false advertising, trademark infringement, and unfair competition.[38] MCoBeauty presents several affirmative defenses, including that the touchstone element of likelihood of confusion cannot be met.[39]

Based on the evidence provided by Sol de Janeiro in the complaint, it is clear that these products bear a very similar resemblance. Although Sol de Janeiro alleges these similarities can cause consumer confusion, time will tell if this will be enough evidence to establish that consumer confusion is beyond “merely hypothetical” as found in Benefit Cosms.[40]

Lululemon Inc. v. Costco Wholesale Corp.

In another ongoing case, Lululemon filed suit against Costco for trade dress and unfair competition under the Lanham Act, as well as patent infringement under federal patent laws and violation of the California Unfair Business Practices Act.[41] In the complaint, Lululemon alleges Costco imported, distributed, advertised, marketed, and sold apparel that infringed upon several of Lululemon’s products, including their DEFINE jackets, SCUBA apparel, and ABC pants.[42] Lululemon provided evidence of noticeable similarities between its apparel and the alleged infringing apparel.[43] Lululemon further asserts that Costco’s actions “are likely to cause (and may have already caused) confusion, mistake, and deception among consumers as to the origin, source, sponsorship, approval, and/or affiliation” of Costco’s products, and that one of the reasons retailers sell dupes is for potential confusion.[44] Lululemon brings examples of how this could or has led to consumer confusion, including The Washington Post article titled “Is That Hoodie Lululemon or a Costco Dupe? No One Has to Know But You” and The New York Times article “Are These $20 Costco Pants a Lululemon Dupe? We Investigated.”[45]

In Costco’s answer, they denied allegations asserted by Lululemon and presented several affirmative defenses.[46] In their answer, Costco did not raise any defenses, arguing that the likelihood of confusion cannot be met.[47]

Similar to Benefit and Sol de Janeiro, Lululemon has brought ample evidence showing that the dupe products bear a very similar resemblance to Lululemon.[48] While this will be helpful to Lululemon’s case, it won’t be enough to prove their claims. Specifically, their trade dress claim cannot succeed unless there is a showing of a likelihood of customer confusion. The court will again have to analyze whether the evidence presented will reach this requirement.

Conclusion

            While dupes are technically legal, the line into infringement can be crossed as the dupes become increasingly similar to the original product and lead to consumer confusion.  Cases like Benefit Cosms. strongly highlighted how consumer confusion is often the deciding factor in trademark and trade dress infringement cases. Current cases will help establish a firmer understanding of this area of law and whether any changes need to be implemented to bridge the gap of uncertainty when applying trademark and trade dress laws to the rising issue of dupes.

While the courts are still working through this blurry area of law, brands can turn to previous cases, which seem to suggest that evidence showing beyond a “mere hypothetical” of consumer confusion could result in favorable outcomes for the high-end brands trying to prevent sales of dupes of their products.

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[1] Dupes, TFL, https://www.thefashionlaw.com/dupes/ (last visited Feb. 15, 2026).

[2] Id.

[3] Alexis P. Grilli, Trademark Tactics: Protecting Your Brand and Rising Legal Battles Over Dupes, Nixon Peabody (July 28, 2025), https://www.nixonpeabody.com/insights/articles/2025/07/28/trademark-tactics-protecting-your-brand-amid-rising-legal-battles-over-dupes.

[4] Amelia Hill, Counterfeit Goes Cool: High-End Brands Urged to Embrace Rise of #Dupe, The Guardian (May 20, 2024), https://www.theguardian.com/media/article/2024/may/20/counterfeit-cool-high-end-brands-urged-embrace-dupe.

[5] Dupes, supra note 1.

[6] Hill, supra note 4; Grilli, supra note 3.

[7] Grilli, supra note 3.

[8] Breanne Wernars, Don’t Get Duped: The Rise of “Dupe” Litigation in the United States, JD Supra (Sept. 4, 2025), https://www.jdsupra.com/legalnews/don-t-get-duped-the-rise-of-dupe-8066705/.

[9] Id.

[10] Tiffany Arosemena et al., Client Advisory – Trends in Dupes & Super-Fakes in Luxury Retail, JD Supra (Jan. 9, 2026), https://www.jdsupra.com/legalnews/client-advisory-trends-in-dupes-super-1753394/.

[11] “Deceptive” Marketing Comes Under Fire in New Dupes Lawsuits, TFL (Dec. 10, 2025), https://www.thefashionlaw.com/false-advertising-comes-under-fire-in-new-dupe-lawsuits/.

[12] Christopher T. Zirpoli, Cong. Rsch. Serv., IF12456, An Introduction to Trademark Law in the United States (July 24, 2023), https://www.congress.gov/crs-product/IF12456.

[13] Trademark Infringement, Legal Info. Inst., https://www.law.cornell.edu/wex/trademark_infringement (last visited Feb. 15, 2026).

[14] Trade Dress Protection, Thomson Reuters, https://uk.practicallaw.thomsonreuters.com/1-524-4196?transitionType=Default&contextData=(sc.Default)&firstPage=true#co_anchor_a834247  (last visited Feb. 15, 2026).

[15] Id.

[16] Id.

[17] About Trademark Infringement, U.S. Pat. and Trademark Off., https://www.uspto.gov/page/about-trademark-infringement (last visited Feb. 15, 2026).

[18] Fast Fashion and Slow Law: Rethinking IP Protections in the Age of Dupes, The GW Just. J. (Feb. 10, 2026), https://gwjusticejournal.substack.com/p/fast-fashion-and-slow-law-rethinking.

[19] Benefit Cosms. LLC v. E.L.F. Cosms., Inc., 2024 WL 5135604, at *1 (N.D. Cal. Dec. 17, 2024).

[20] Id.

[21] Id. at *8.

[22] Id. at *11.

[23] Benefit Cosms., 2024 WL 5135604, at *8.

[24] Id. at *17.

[25] Id. at *4.

[26] Id. at *4.

[27] Benefit Cosms., 2024 WL 5135604, at *11.

[28] Id. at *10.

[29] Id. at *15.

[30] Id. at *17.

[31] Benefit Cosms., 2024 WL 5135604, at *17.

[32] Verified Complaint and Jury Demand, Sol de Janeiro U.S. v. MCoBeauty Ltd., No. 24-cv-08862 (S.D.N.Y. filed Nov. 20, 2024) [hereinafter Sol de Janeiro Complaint].

[33] Sol de Janeiro Complaint, supra note 32, at 1–2.

[34] Id. at 2.

[35] Id. at 19.

[36] Id. at 25.

[37] Sol de Janeiro Complaint, supra note 32, at 26.

[38] Defendant MCobeauty, Inc.’s Answer and Affirmative Defenses, Sol de Janeiro U.S. v. MCoBeauty Ltd., No. 24-cv-08862 (S.D.N.Y. filed Jan. 28, 2025).

[39] Id. at 13.

[40] Benefit Cosms. LLC v. E.L.F. Cosms., Inc., 2024 WL 5135604, at *17 (N.D. Cal. Dec. 17, 2024).

[41] Complaint Jury Trial Demanded, Lululemon Inc. v. Costco Wholesale Corp., No. 25-cv-5864 (C.D. Cal. June 27, 2025) [hereinafter Lululemon Complaint].

[42] Id. at 21.

[43] Id. at 23–27.

[44] Id. at 3, 29.

[45] Lululemon Complaint, supra note 41, at 3–4.

[46] Defendant Costco Wholesale Corporation’s Answer to Complaint, Lululemon Inc. v. Costco Wholesale Corp., No. 25-cv-5864 (C.D. Cal. Aug. 21, 2025).

[47] Id. at 15–17.

[48] Lululemon Complaint, supra note 41, at 7–27.