Intellectual Property Blog

Buying a knockoff used to be something people kept quiet about. Now finding the best "dupe" can get you followers. Social media has taken the stigma out of copycat products and turned the search for cheaper alternatives into viral content. Competitors have noticed, and many are more willing than ever to imitate premium brands and pull shoppers their way. For brand owners, this creates a real legal problem.

The Confusion Problem

Trademark law under the Lanham Act depends on a likelihood of confusion about where a product comes from, who sponsors it, or who it's affiliated with. Dupe culture complicates that. A shopper who clicks an influencer's "#BrandXYZDupe" link, or who goes looking for a cheaper version of a product, usually knows exactly what they're buying. When the buyer is "in" on the decision, a traditional infringement claim can fall apart, because after all, who is confused?

That doesn't leave brands without options. Here's how the strategy is changing.

1. Trademarks Are Still the First Line of Defense

Copycats, influencers, and competitors still use brand names to capture search traffic, so trademark enforcement still matters. Common tactics include:

• Social media takedowns. Dupe content relies on brand names in captions and hashtags. Platform policies and takedown procedures can often remove these references at the source.
• Ad copy and sponsored headlines. Brands can use ad-platform takedown procedures, or send demands that competitors stop using their marks in ads and add negative keywords so their ads stop showing up in searches for the brand.
• Post-sale confusion. If a casual observer who sees the product in public would be misled about where it came from, a trademark claim may still work even if the buyer wasn't confused.

2. When Trademarks Don't Apply, Consider Trade Dress

Careful dupers avoid using the brand's name entirely. Instead, they copy the vibe: a boot's silhouette, a cream jar's shape, a snack package's colors and layout. Trade dress can protect a product's overall look, but only if that look is non-functional and distinctive.

Several recent cases are testing where those lines fall:

• Sol de Janeiro vs. Apollo and Costco, over a body cream in a similar yellow palette and round jar
• Mondelēz vs. Aldi, over private-label packaging that allegedly imitates Oreos, Wheat Thins, and Nutter Butter
• Lululemon vs. Costco, over activewear alleged to copy its seams, color names, and silhouettes

These cases are hard to win. Courts are reluctant to give anyone a monopoly on utilitarian design. Unless a brand can prove secondary meaning in a product design, or show clear copying of truly unique, non-functional packaging, courts increasingly treat dupes as fair competition.

3. The Pivot: Go After What Competitors Say

More brands are now focusing less on how a product looks and more on how competitors advertise it, using false advertising claims. The lesson: if the product shape is hard to protect, look at the marketing around it.

The Takeaway

Dealing with dupes today means combining traditional trademark and trade dress enforcement with advertising-focused strategies. Whether you need to strengthen your IP portfolio, evaluate a competitor's aggressive marketing claims, or review your own advertising compliance, our team can help.

Read the full article, including case citations and more analysis here.