The “Dupe” Phenomenon
Makeup “dupes,” a clever term for lower-priced cosmetic products that mimic or substitute their higher-end counterparts, have become increasingly popular.[1] Dupe discovery was exciting, encouraging social media influencers and consumers to hunt for the “perfect” products to rival premium beauty products at a lower price.[2] TikTok has accelerated dupe shopping, particularly with Millennials and Gen Z, while encouraging candid conversations about product trial and error.[3] Print and electronic publications, including Cosmopolitan and The Business of Fashion, have also weighed in on dupe comparisons.[4] However, the growth of the “dupe” phenomenon has implicated the legal and business industries; while dupes respond to consumer demand, the notion that brands can “copy” successful products in the market presents intellectual property and patent law issues.[5]
Good-faith dupe discovery—finding cheaper products that are similar in color, texture, quality, and user experience to premium makeup—soon shifted.[6] Beauty conglomerates may exhibit bad-faith behaviors, such as seizing the opportunity to profit by intentionally and closely imitating a popular product’s packaging.[7] Brand imitation that hovers the line of intellectual property, patent, and trademark infringement negatively impacts established brands that invest in creating original, fan-favorite products.[8]
Lanham Act and Its Loopholes
The Lanham Act, enacted by Congress in 1946, provides a national trademark registration system.[9] For eligible trademark protection, the product must be used in commerce and be distinctive.[10] To establish trademark infringement under the Act, plaintiff brands must prove they own a valid and legally protective mark and that the defendant brand’s unauthorized use of the mark to identify its goods will likely cause confusion among consumers.[11] However, defendant brands have no obligation to dispel confusion.[12] Brands find a loophole by neither using the original brand’s protected logo nor claiming to be the same product they are duping.[13] Brands rarely use trademarked names when duping a product, but they will mimic the “trade dress,” or distinguishing characteristics, including color, design, and packaging, attributed to the original product.[14] For example, in February 2023, Benefit Cosmetics LLC sued e.l.f. Cosmetics Inc. for trademark and common law trade dress infringement of its “Roller Lash” mascara, with its $300 million revenue and unique “Hook ‘N Roll” branded brush, developed in 2015.[15] Benefit claimed that e.l.f.’s version, “Lash ‘N Roll,” distributed in 2023, copied Roller Lash’s registered trademark and trade dress, primarily the pink and black colors used on the packaging.[16]
Legal Impact of Dupes on the Beauty Industry
To receive intellectual property protection, brands have a high burden in proving their product is novel, innovative, and effective, which often includes extensive testing.[17] Larger brands have more resources to complete this process, which can take years, especially when filing in different countries for global intellectual property protection.[18] Regardless of intent, brands that copy another’s trade dress or trademark risk future litigation.[19] However, dupes do not often infringe on patent law because ingredients, formulas, and product types in the beauty industry are not unique enough to have standard patent protection.[20]
Brands that sell and manufacture dupes can claim a classic fair use defense.[21] Classic fair use occurs when brands imitate competitor trade dress but only to describe their own product.[22] Since brands do not often claim to be the prestige product itself, winning trademark or trade dress claims requires plaintiff brands to prove the dupe could cause consumers to confuse the dupe with its product.[23]
Ultimately, dupes can create positive competition in the market, but imitating products too closely can land brands in legal trouble.[24] Dupes provide additional options for consumers at lower price points but also may compromise product quality and stifle originality.[25] As consumers adapt to evolving dupe trends, litigation may follow.[26] The catch: the burden rests entirely with plaintiff brands to prove consumer confusion, which offers defendant brands the opportunity to test legal boundaries.[27]
[2] See Samantha Primeaux, Makeup Dupes and Fair Use, 67 Am. U. L. Rev. 891, 899–900, 902–03 (2018).
[5] See Primeaux, supra note 2, at 893.
[7] See id. at 891, 922–23.
[10] Legal Information Institute, supra note 9.
[12] KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 543 U.S. 111, 124 (2004).
[13] See Primeaux, supra note 2, at 907, 914.
[14] See id. at 901, 909, 921.
[15] See Complaint at 1–2, Benefit Cosmetics LLC v. e.l.f. Cosmetics, Inc., No. 23-cv-00861 (N.D. Cal. filed Feb. 24, 2023).
[16] See id. The bench trial concluded on October 30, 2024, and the parties currently await the judge’s decision. See Bench Trial Civil Minute Order, Benefit Cosmetics LLC v. e.l.f. Cosmetics, Inc., No. 23-cv-00861 (N.D. Cal. filed Oct. 30, 2024).
[19] See Primeaux, supra note 2, at 915.
[21] See Primeaux, supra note 2, at 912–14.
[24] See id. at 896, 925.
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