Dupe or Deception? Drawing the Line Between Product Inspiration and Trademark Infringement

On your most recent makeup haul, you may have noticed that products lining the walls at Sephora look head-spinningly similar to those at off-brand or discount retailers. The latest incarnation of the makeup “dupe” phenomenon has resulted in lower-priced brands packaging their products in containers with the same colors, shapes, and fonts as some of your favorite lines.^[1] A “dupe,” short for duplicate, is a less expensive product marketed as resembling and performing like a more expensive or popular product.^[2] In addition to being a great money-saver, some dupes also represent an interesting facet of trademark and trade dress law as discount brands toe the line between capitalizing on a trend and getting hit with a lawsuit.^[3]

Brand identities are protected under 15 U.S.C. §§ 1051 et seq., known as the “Lanham Act,” which protects source identifiers like brand names and logos, as well as the distinctive look and feel of a product or its packaging.^[4] The Lanham Act creates a cause of action against anyone who “on or in connection with goods or services, or any container for goods, uses . . . any word, term, name, symbol, or device” in a way that is “likely to cause confusion . . . as to the origin, sponsorship . . . or misrepresents the nature, characteristics, [or] qualities of . . . goods. . . .”^[5]  The Lanham Act protects two similar, but distinct, source identifiers: trademarks and trade dress.^[6] A trademark is any word, symbol, phrase, or design used to identify the source of a product.^[7] Colors can also qualify as trademarks if the color has “acquired distinctiveness,” meaning that consumers recognize the color as identifying the brand.^[8] Trade dress is the “commercial look and feel of a product or service,” including the shape of materials, product design, and packaging.^[9] A seminal example is the recognizable red sole on Christian Louboutin shoes.^[10] Notably, trade dress is only protected to the extent that it is nonfunctional.

Bringing a claim under the Lanham Act requires a brand to meet three criteria.^[11] First, a brand needs to show that they have a valid trademark or trade dress.^[12] Registration with the U.S. Patent and Trademark Office is one key way to establish trademark or trade dress rights, but it isn’t required.^[13] A brand also must show that the defendant dupe used the brand’s trademark or trade dress in commerce – usually by showing use in a commercial product.^[14] Finally, the most important element a brand must prove is that the defendant’s use of the mark is likely to confuse consumers, making them believe that the dupe came from the original brand.^[15]

So how do the dupes you see in stores get away with it? Determining whether a dupe has crossed the line is highly fact-specific.^[16] Importantly, the burden is on the brand to prove that they hold a valid trademark or trade dress.^[17] For elements such as color, font, or specific product design features, this burden may be difficult to meet.^[18] A dupe can thus co-opt these design elements and shift the onus back to the brand, requiring it to engage in costly litigation.^[19] If a brand does pursue such litigation, a court may find that the brand’s more fringe trademark claims, such as font and color, are not actually protectable, thus opening the door to more dupes.^[20] Some dupes also copy the functional elements of a product, such as the applicator or dispenser, which are excluded from trademark protection under the Lanham Act, even if they are so distinctive that they identify a brand.^[21] These methods, although risky, are being employed more and more frequently with the rise of dupes on social media.^[22] Ultimately, the influx of dupes highlights the boundaries of trademark and trade dress law in protecting the visual identity of a brand. As the line between inspiration and imitation is increasingly blurred, brands must rely on identifiers that both fit their aesthetic and the Lanham Act’s limits to distinguish their products from the growing field of competitors.

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^[1] See Sarah Rosenberg, Unenforceable “Infringement”: The Benefits of Makeup Dupes and Legal Copying, 14-2 N.Y.U. J. Intell. Prop. & Ent. L. 315, 315 (2025) (defining dupes and discussing their rise in consumer marketplaces.)

^[2] See id. at 318 (“…dupes are products that imitate a luxury good’s look or feel for a lower price point.”)

^[3] See id. at 319

[4] See 15 U.S.C. §§ 1051 et seq. (West).

[5] See 15 U.S.C. § 1125 (West).

[6] See id.

[7] United States Patent and Trademark Office, What is a trademark?, (September 25, 2026 at 5:27 ET) https://www.uspto.gov/trademarks/basics/what-trademark.

[8] See Qualitex, Co. v. Jacobson Prods., 514 U.S. 159, 163-64 (1995) (finding that, where color meets ordinary trademark requirements of “identify[ing] and distinguish[ing] goods” it may qualify as a trademark.)

[9] See Justia, Trade Dress Under the Law, (September 25, 2026 at 5:32 ET) https://www.justia.com/intellectual-property/trademarks/trade-dress/.

[10] See Anne H. Hocking & Anne Desmousseaux, Why Louboutin Matters: What Red Soles Teach Us About The Strategy Of Trade Dress Protection, 105-6 Trademark Rep. 1337 (2015) (describing Louboutin’s red sole trade dress strategy and its impact)

[11] See Trademark Infringement, Cornell Law School Wex Legal Information Institute (April 2025), https://www.law.cornell.edu/wex/trademark_infringement.

[12] See id.

[13] See id.

[14] See id.

[15] See id.

[16] See Lanham Act, Cornell Law School Wex Legal Information Institute (June 2023), https://www.law.cornell.edu/wex/trademark_infringement.

[17] See id.

[18] See Rosenberg, supra note 1, at 325 (noting that trade dress elements such as color are protectable only if they have acquired secondary meaning, leaving “luxury brands vulnerable to a dupe product imitating new packaging very shortly after it hits the market.”)

[19] See id.

[20] Wal-Mart Stores, Inc. v. Samara Bros., 529 U.S. 205 (2000) (finding that trade dress elements that have not acquired secondary meaning are not protectable under the Lanham Act.)

[21] See Rosenberg, supra note 1, at 330 (emphasizing that utilitarian or functional elements of a product do not receive protection.)

[22] See id. at 325.