Part 1: Drawing the Line: Dupes, Infringement, and Counterfeits

Walk into any Sephora, scroll on TikTok, or browse Amazon’s “frequently compared” suggestions, and you’ll run into the same word over and over: “dupe.” What used to be a niche shopping hack has exploded into a multi-billion-dollar consumer movement over the past few years, fueled by inflation and consumers looking to stretch a dollar, and it’s reshaping how brands think about protecting what they’ve built.

To understand where the legal risk actually lies, it helps to separate three terms that often get blurred together: counterfeit, trademark infringement, and dupe. A counterfeit is a product (or service) sold under a trademark that is identical or substantially indistinguishable from a trademark registered for the same type of goods, the kind of conduct that exposes a seller to criminal liability and statutory damages. Trademark infringement is broader: it involves a confusingly similar (not necessarily identical) mark used in a way that is likely to confuse consumers about source or affiliation. A dupe, by contrast, isn’t a legal term at all. It’s marketing shorthand for a product that mimics another’s look, feel, or aesthetic while deliberately avoiding the original’s name or logo altogether.

That last point is where a common misconception creeps in: if a look-alike product doesn’t use another company’s word mark or logo, it must be legal. The belief isn’t unreasonable, since trademark law turns on consumer confusion, but it overlooks the many other ways in which intellectual property laws protect brands.

Many companies design and market look-alike products with exactly that misconception in mind. They avoid using another company’s name or logo, prominently display their own branding, and position their products as lower-cost alternatives rather than the genuine article, whether through direct advertising or influencer marketing. Those efforts may reduce the risk of a trademark infringement claim, but avoiding consumer confusion through use of different branding is not a get-out-of-jail-free card. A look-alike product may still implicate trade dress, design patents, copyright, false advertising, or unfair competition, depending on what has been copied and how the product is designed and marketed. In other words, trademark infringement is often just the beginning of the legal analysis.

This series picks up where that gap leaves off, tracing the broader inquiry into what the law protects once a dupe has cleared the counterfeit and word/design mark infringement hurdles. Over the course of the summer, we will examine, doctrine by doctrine, the legal tools available to protect brands against dupes: trademarks and trade dress, copyright, design patents, unfair competition, and false advertising. Each addresses a different type of copying and serves a different purpose, with its own strengths and limitations. Effective brand protection means understanding how these doctrines work together, and recognizing when one succeeds where another falls short.

Next in the series: Part 2 – Trademarks & Trade Dress: Protecting Source Indicators.

This article is the first installment in our A Brand Protection Toolkit to Combat Dupes series.