Combating “Dupe Culture” and Aggressive Competitors in the Modern Marketplace

Michael G. (Mickey) Sutton

Traditionally, buying a counterfeit or a generic knockoff happened in the shadows. But today, being the first to find or promote a “dupe” is often flaunted as a badge of honor. Social media has destigmatized the copycat, turning the hunt for cheaper alternatives into viral content. And competitors are capitalizing on this development too, acting more boldly than ever to mimic premium brands and redirect consumer attention.

This cultural and commercial shift has created a complex gray area under the Lanham Act. The hallmark of trademark law is establishing a likelihood of confusion regarding a product’s source, sponsorship, or affiliation. However, copycat culture introduces a wrinkle that is ripe for exploitation: the possibility that there is no point-of-sale confusion.

If a consumer walks into a discount store or clicks a social media affiliate link specifically looking for a cheaper alternative or a competing brand, was the consumer confused as to source, sponsorship, or affiliation? Potentially not. Sophisticated shoppers are fully aware they are buying a less expensive competitive copy. In traditional trademark infringement scenarios, this clear intent by the buyer can dismantle a claim, as the purchaser is entirely “in” on the decision.

Trademarks Are Still the First Line of Defense: What Brands Can Do to Fight Back

Even where confusion is absent in the “traditional” sense, brand owners still look to trademark law as the first line of defense because copycats, influencers, and even competitors often use brand names to capture consumer search traffic. The defensive tactics include:

• Initiating Social Media Takedowns: Dupe creators rely on referencing brands in captions and hashtags (e.g., “#BrandXYZDupe” or “Cheap Alternative to BrandABC”) to appear in search feeds. Often, brands can leverage platform policies and takedown procedures to efficiently remove unauthorized brand references at the source.
• Enforcing Against Unauthorized Ad Copy and Sponsored Headlines: Copycats and competitors also frequently reference brands directly in their paid search ad copy and sponsored headlines to appear in search results. In many cases, brands can leverage takedown procedures on the ad platforms to curb the disruption and/or contact the copycats and competitors to demand that they stop using the brand’s trademarks in advertising and that they implement negative keywords to prevent their ads from appearing in search results for the brand owner’s products or services. 
• Enforcing Against Post-Sale Confusion: Under the doctrine of post-sale confusion, infringement occurs if a casual observer seeing the product used in public would be deceived as to its origin. In other words, if a product’s real-world use distorts its appearance enough to mimic a competitor and damage its origin function, a trademark claim is still viable.

What if Trademark Enforcement Isn’t Applicable? Enter the Trade Dress Alternative

Clever dupe manufacturers and competitors are careful to avoid using a brand’s trademarks on a product or in paid search ad copy and sponsored headlines. Instead, they copy the vibe: the unbranded silhouette of a boot, the rounded bottom and oversized lid of a skin cream jar, or the font layout and combination of colors on the packaging of your favorite afternoon snack. Where trademark law doesn’t offer a clear means of enforcement, trade dress has become the primary traditional alternative left to address the copying of a product’s or packaging’s overall commercial image.

To block a competitor from copying a signature look, the claimed trade dress must be non-functional and distinctive. Several legal battles are testing these limits. In the beauty and cosmetics space, Sol de Janeiro sued Apollo & Costco over its “Nutrius” body cream, which mirrored the Sol Yellow color palette and round, wide-mouth jar of Sol de Janeiro’s premium “Bum Bum Cream.”^[1] In the grocery space, Mondelēz took aim at Aldi’s private-label packaging, claiming the discount grocer deliberately and systematically copied its iconic packaging for Oreos, Wheat Thins, and Nutter Butter.^[2] And in the apparel space, Lululemon is suing Costco over its Kirkland-brand and affiliate activewear, alleging that Costco’s “unauthorized dupes” copy the exact aesthetic seam placements, color names, and silhouettes of its iconic apparel.^[3]

Proving these design-based cases remains a steep uphill climb for brands, with success heavily dependent on how the look-alike elements are legally categorized. Additionally, courts are often hesitant to grant monopolies over utilitarian designs or packaging choices.^[4] For instance, in the Sol de Janeiro dispute, the court handed the premium brand a loss, confirming that brands cannot claim exclusivity over functional product attributes.^[5] Unless a brand can prove secondary meaning for a product design, or clear copying of highly unique, non-functional packaging configurations, courts are increasingly viewing dupes not as illegal infringements but as lawful, fair competition.

Moving Beyond Trademark and Trade Dress to an Ad-Centric Playbook

Because the lack of point-of-sale confusion undercuts traditional claims of trademark infringement, and because courts are notoriously hesitant to grant design monopolies under trade dress, many brands are engineering a strategic pivot. Instead of fighting uphill battles over how a product looks, brand owners are increasingly targeting what the competitor says about the product by using false advertising claims to protect their brands.

An example of this shifting legal battlefield is the ad-centric litigation strategy recently deployed by Williams-Sonoma, Inc. (WSI). The legacy home furnishings manufacturer has taken aim at both the digital tools fueling dupe culture and those profiting from it.

WSI recently sued the operator of Dupe.com—a digital storefront and reverse-image search tool that purports to let shoppers “find similar products for less.”^[6] WSI’s lawsuit targeted misinformation, in particular, the narrative that its premium furniture items are “made in the same factories” as cheap knockoffs and sold at inflated margins. WSI pointed to ads targeting West Elm’s Berra Chair that claimed, “a lot of furniture is made in the same few factories and brands sell them for different prices,” which WSI maintained was patently false. While the case ended in a confidential settlement and dismissal with prejudice, it serves as a template for brands looking to halt deceptive “same-source” marketing ploys.

Building on that momentum, WSI filed suit against the direct-to-consumer brand Quince.^[7] Quince has become popular by marketing its products as lower-priced luxury alternatives, using ads with taglines such as “Pottery Barn quality for half the price.” Rather than relying strictly on trade dress infringement over furniture designs, WSI’s complaint focuses heavily on false advertising and unfair business practices. The lawsuit alleges that Quince uses deceptive “Beyond Compare” charts on its product pages, misrepresents raw material and sustainability certifications to imply equivalence, and manipulates customer reviews to manufacture false narratives of product parity.

This litigation highlights the reality of the paradigm shift: when the product shape itself is difficult to protect under traditional IP frameworks, consider targeting the deceptive marketing surrounding it.

How We Can Help

The prevalence of “dupes” and competitor copycats in today’s marketplace necessitates pairing traditional trademark and trade dress enforcement with other non-traditional tactics. Whether you need to shore up your intellectual property portfolios, evaluate a competitor’s aggressive digital marketing campaigns or advertising claims, audit your own advertising compliance, our team is here to help.

Mickey Sutton
513.579.6468
msutton@kmklaw.com 

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[1] Apollo Health and Beauty Care Inc. v. Sol de Janeiro USA Inc. et al., No. 1:22-cv-07719 (S.D.N.Y.)

[2] Mondelēz International, Inc. v. Aldi, Inc., No. 1:25-cv-05905 (N.D. Ill., filed May 27, 2025).

[3] Lululemon Athletica Canada Inc. v. Costco Wholesale Corporation, No. 2:25-cv-05864 (C.D. Cal., filed June 27, 2025).

[4] Wal-Mart Stores, Inc. v. Samara Brothers, Inc., 529 U.S. 205 (2000).

[5] https://law.justia.com/cases/federal/district-courts/new-york/nysdce/1:2022cv07719/586092/465/#:~:text=Court%20Description%3A%20MEMORANDUM%20DECISION%20AND,directed%20to%20close%20ECF%20Nos (accessed June 17, 2026).

[6] Williams-Sonoma, Inc. v. Carrot Cart, Inc. d/b/a Dupe.com, No. 1:24-cv-06597 (S.D.N.Y., filed Aug. 30, 2024).

[7] Williams-Sonoma, Inc. v. Last Brand, Inc. d/b/a Quince, No. 3:25-cv-10118 (N.D. Cal., filed Nov. 21, 2025).