Understanding “Dupes”
“Dupes,” short for duplicates, are imitation products that have achieved notoriety of their own and are a cultural phenomenon. A dupe is a more affordable product that mirrors the look, feel, or functionality of a well-known brand, but without directly copying the trademark or trade dress that would make it a counterfeit.
Dupe culture is fueled by social media influencer marketing and direct-to-consumer e-commerce. Dupes avoid the legal label of “counterfeit,” but their increasing popularity creates a legitimate challenge for trademark enforcement.
Consumer Preference and the Rise of Dupes
Social media hashtags are used as a search function or to describe products within posts. Dupe hashtags, including #Dupe, #LuxuryForLess, and #AffordableBeauty, among others, have drawn millions of views. Beauty products, handbags, and other luxury-inspired items are compared, reviewed, and promoted through unboxing videos and “best dupe” lists.
Although counterfeit products have been found to deceive consumers intentionally, dupes occupy a gray area. Dupes mimic the aesthetics, textures, and performance of original, trademarked, and luxury items, without using brand names or logos in their trade dress or marketing. However, in social media commentary, the comparison to the original, trademarked, and luxury item is often implied or explicit. This raises protection questions for intellectual property owners: When does a dupe cross the line from clever marketing to trademark infringement?
Mark Protection and Dupe Culture
Under the Lanham Act, owners of federally registered marks are protected against the unauthorized use of similar marks. To succeed, senior trademark holders must demonstrate that a dupe confuses consumers into believing that the product is genuine, affiliated with, or endorsed by the brand. When a dupe allegedly weakens a brand’s distinctiveness or harms its reputation, trademark dilution may also apply.
Because dupes frequently avoid overt trademark use, instead taking market share by performing a similar function, they can be difficult to challenge. Luxury brands are adopting new legal strategies to challenge dupes, including the use of patent and trade dress claims.
A Case Study: Lashify v. Worldbeauty
One recent challenge underscores both the risks and the stakes. Lashify, Inc., founded by Sahara Lotti in 2016, built a patented lash extension system now valued at over $34 million and protected by more than 600 patents worldwide. When Chinese manufacturer Worldbeauty marketed a lash “dupe,” Lashify sued.
A Texas federal jury found willful infringement of three Lashify patents, awarding $30.5 million in lost profits plus royalties. Defending Lashify’s IP, however, required nearly $50 million in legal costs across multiple courts and the International Trade Commission. Litigation against dupes can succeed--but at what cost?
The Role of Consumer Surveys
Properly designed consumer surveys provide litigators with strategic tools that courts can rely on to measure and understand how consumers perceive the at-issue products, trademarks, or advertising statements. Some of the surveys that are frequently used to measure consumer perception in trademark disputes are likelihood of confusion surveys, likelihood of dilution surveys, and damages surveys.
Likelihood of confusion surveys assess whether consumers mistakenly believe a dupe originates from, or is affiliated with, the brand owner. Likelihood of Dilution Surveys Likelihood of dilution surveys measure whether the presence of a dupe weakens a famous mark (blurring) or harms its reputation through low-quality or negative associations (tarnishment). Damages surveys may also be used to estimate lost sales, shifts in consumer preferences, or erosion of brand goodwill caused by dupes.
In cases where influencers disclose a product as a dupe, consumer research may be the key to determining whether that disclosure effectively prevents confusion or exacerbates it. When consumers still associate the dupe with the original brand, trademark protections may apply.
As dupe culture grows, luxury and beauty brands are adapting their own marketing and trademark protection strategies. Consumer surveys provide persuasive, courtroom-ready evidence in the face of a challenge.
If your brand is confronting the challenges of dupes and you want to understand how consumer perception research can strengthen your case, IMS Legal Strategies can help.
