United States: Market Insights

The age of the dupe - reframing copying in fashion

In a world where social media and e-commerce collide through mediums like TikTok Shop and Amazon Live, fashion has become more accessible than ever. Many social media influencers promote dupes, that is, lower cost versions of popular product designs, and some even transparently pay attribution to the dupes’ luxury inspirations. The rise in popularity of “dupe culture” creates increased tension between protecting designs from imitation and making trends more broadly available. Amid this shift, fast fashion and designer brands alike need to be strategic and aware of the boundaries of intellectual property protections.

Although dupes toe the line between fair competition and illegal infringement, they do not always cross it. In the United States, it is not illegal to copy a design that is not subject to intellectual property protections — like the cut and shape of apparel. For example, a quilted nylon pattern on a handbag design may be stylish but, as the United States District Court for the Southern District of New York found, that popular style is not protectable. See, for example, MZ Wallace Inc. v. Fuller, No. 18 CV 02265, 2018 WL 7133565 (S.D.N.Y. December 26, 2018) (holding that MZ Wallace had not established trade dress rights in a quilted handbag design). Brands, manufacturers, and retailers looking to capitalize on common trends are free to utilize commonplace and non-protectable design elements to bring trends to the masses.

But there are times when dupes go too far in their imitation. In those instances, designing brands are not without recourse, particularly if they are armed with diversified intellectual property portfolios — copyright for fabric designs, design patents for ornamental product features, trade dress for product packaging and other distinctive designs, and more. Beyond building out their intellectual property portfolios, designing brands should think creatively about their approach to any necessary litigation. For example, designing brands should utilize sensible cease and desist requests, record different types of evidence of confusion, and consider less common claims like dilution and false advertising. On the reverse side, brands drawing inspiration from other designs should conduct diligence to understand and respect any relevant intellectual property and focus on the transparency and authenticity with which they clearly disclose the origins of their products. With dupe culture finally making its way into the courtroom, the emerging trends and lessons are important to all sides of the fashion spectrum.

Emerging trends and lessons from recent dupe litigation

Distinctiveness is key to protection ­— be aware of the third-party marketplace

Where trade dress may be at issue, a threshold question is whether the originating brand has a distinctive design that serves as a designator of source. In evaluating distinctiveness, courts look at the length of exclusive use in the market. Where there are multiple third parties producing similar-looking goods, distinctiveness will be more difficult to establish. In other words, the more dupes on the market, the more difficult it will be to challenge any one dupe. Accordingly, the key for designing brands is to establish rights as soon as possible, to more productively ward off imitators and maintain design exclusivity.

Many defendants in dupes-related litigation have focused on a lack of exclusive use and distinctiveness to challenge whether the designs at issue constitute protectable trade dress. For example, in Deckers Outdoor Corp. v. Last Brand, Inc., the maker of UGG boots alleged that the defendant, online retailer Quince, infringed a variety of its popular shearling boot designs, including its unregistered Classic Ultra Mini Boot and its Tasman Slipper trade dresses (No. 23 CV 04850, 2025 WL 2822685 (N.D. Cal. October 2, 2025)). Quince pointed to evidence of third-party uses of the designs of the Ultra Mini Boot and Tasman Slipper to establish that those designs were generic and not protectable. The court agreed and granted summary judgment in Quince’s favor, holding that the designs were “so common in the industry that [they] c[ould not] be said to identify a particular source” (Id., 2025 WL 2822685 at *4). This result underscores that trade-dress protection cannot extend to basic product shapes or aesthetic features common in the market because no one brand can monopolize entire categories of aesthetic or functional features like quilting, shearling, or color blocking. See also Steven Madden, Ltd. v. Ganni A/S, No. 1:24-cv-04946 (E.D.N.Y. July 16, 2024) (in which Steve Madden successfully invoked a similar strategy to that of Quince).

Challenges in enforcing trademark and trade dress rights — dupes might not dupe consumers

When consumers knowingly purchase a dupe, confusion — the touchstone of trademark infringement — is often absent. This means that in asserting trademark and trade dress rights potential plaintiffs need to account for context in which consumers encounter dupes in the market and consider creative alternatives to the traditional theories of forward confusion. In assessing the likelihood of consumer confusion, courts have placed great weight on other factors like brand transparency, price, and labeling.

In a recent case grappling directly with the dupe phenomenon, plaintiff Benefit Cosmetics alleged that defendant e.l.f.’s USD 6 “Lash ’n Roll” mascara was a deliberate imitation of Benefit’s USD 29 “Roller Lash” mascara and infringed both Benefit’s trademark and trade dress rights. e.l.f. admitted that its design “cued” consumers to Roller Lash but argued that transparency, not deception, was its intent. The court agreed. Although Benefit Cosmetics established protectable trade dress rights, it failed to show likely consumer confusion. The court noted that both companies marketed under distinct house marks, through separate retail channels, at vastly different price points, and had two years of coexistence without a single instance of confusion. These facts led the court to hold that while Lash ’n Roll “is a ‘dupe’ of Roller Lash, it does not dupe any consumers,” and is not infringing (Benefit Cosms. LLC v. e.l.f. Cosms., Inc., No. 23 CV 00861, 2024 WL 5135604, at *17 (N.D. Cal. December 17, 2024)).

Learning from prior holdings, plaintiffs are looking to advance less common theories of confusion. In 2025, Lululemon sued Costco based on its sale of apparel that allegedly copied Lululemon’s Scuba Hoodies, Define Jackets, and ABC Pants. The complaint asserts trade dress and design patent infringement and alleges that Costco’s look-alikes cause post-sale confusion: bystanders might believe consumers wearing Costco products were wearing Lululemon (Lululemon Athletica Can., Inc. v. Costco Wholesale Corp., No. 25 CV 05864 (C.D. Cal. June 27, 2025)). The suit remains pending, but it illustrates the need to be strategic in this age of general consumer sophistication, and to look at less common and alternative theories like post-sale and initial-interest confusion. Potential plaintiffs should also carefully monitor social media and the internet for diversified showings of potential confusion and utilize credible survey evidence in litigation.

Dilution and false advertising may be the next frontier

Looking beyond trademark and trade-dress infringement, dilution and false advertising claims are often overlooked but may provide the key to protecting against dupes.

Claims of dilution — either under a theory of “blurring” or “tarnishment” — differ from infringement because they do not require the “likely consumer confusion” that may be difficult to otherwise prove for trademark infringement. As a result, dilution claims may present an opportunity to protect truly famous products from the often mass-produced, lower quality items being promoted on social media. Brands might even use social media to bolster their claims — fame for dilution can be built through viral recognition — and hashtags, memes, and influencer promotions can all contribute to public awareness. Assuming a designing brand establishes the fame of its product design and the defendant’s products use that design, dilution claims may make strategic sense. Designing brands should also think carefully about whether a state dilution claim is appropriate, given that some states require only that the trade dress at issue is strong, rather than famous, to support a dilution claim.

For example, in addition to alleging trademark infringement and false designation of origin claims, Louis Vuitton recently has alleged that defendant United Monograms has diluted Louis Vuitton’s iconic monogram trademarks through its sale of apparel emblazoned with faux-monogram prints (Louis Vuitton Malletier, SAS v. Lowery Brands LLC d/b/a United Monograms, No. 25 CV 08152 (S.D.N.Y. October 1, 2025)). Specifically, Louis Vuitton has alleged that United Monograms’ products tarnish the reputation of Louis Vuitton’s trademarks, given the inferior quality of the defendant’s goods, and Louis Vuitton’s complaint includes dilution claims under both the Lanham Act and New York General Business Law. While this case remains pending (and it could settle before the court weighs in), it illustrates a potentially viable alternative to trademark and trade-dress infringement claims.

False-advertising law can also complement trademark law: even absent confusion, a claim that a dupe is “identical to” its inspiration may be actionable where that claim is false and material to consumer purchasing decisions. For example, Sol de Janeiro USA, Inc. v. MCoBeauty Pty Ltd. extends dupe litigation beyond appearance into the realm of advertising (No. 24 CV 08862 (S.D.N.Y. November 20, 2024)). There, plaintiff Sol de Janeiro alleged that MCoBeauty’s “Fragrance Mists No. 1–4” were falsely marketed as “exact copies” of its Cheirosa Perfume Mists — with social media posts and influencer videos proclaiming that the dupes “smell exactly like Sol de Janeiro.” The complaint alleges that these statements are literally false and a violation of section 43(a) of the Lanham Act because the fragrances differ with respect to their ingredients, scent longevity, and intensity. While still pending, this case highlights another potential angle to dupes litigation.

Courts will focus on transparency and intent

The message from recent rulings is murky, but brands that invest in genuine distinctiveness — and communicate honestly about their heritage — may thrive in this environment. The law does not punish admiration; and in the age of the dupe, authenticity remains the most valuable mark of all.

Transparency as to source and inspiration can be the difference between infringement and lawful competition. Courts are less likely to find infringement where the copycat is transparent that its product is inspired by — and merely a “dupe” of — a popular product. Alternatively, where a junior user attempts to pass off their items as somehow associated with the original designer, they invite claims of willful infringement and, in some cases, false advertising. e.l.f.’s good-faith homage to Benefit Cosmetics’ Roller Lash product survived scrutiny; by contrast, MCoBeauty’s marketing of “identical” or “designer” products invites liability.

Strategic takeaways for fashion counsel

• Build a layered IP portfolio. Combine trademarks, trade dress, trade secrets, copyrights, and design patents to protect both brand and silhouette.
• Document distinctiveness. Maintain consumer surveys, press mentions, and advertising history to prove secondary meaning.
• Monitor digital marketing. Track influencer and retailer content for false comparisons and misuse of brand names.
• Balance enforcement tone. Aggressive litigation can alienate consumers, invite counterclaims, and result in narrowed IP rights if not pursued strategically. Target clear deception while tolerating truly “inspired by” products that follow cyclical fashion trends.
• Coordinate internationally. Many dupe sellers operate across jurisdictions; align strategies across customs, e-commerce takedowns, and global IP filings.