The rise of dupe culture has fundamentally transformed the fashion industry, creating a phenomenon that’s reshaping how consumers shop, how brands protect their designs, and how courts interpret intellectual property law. Across social media platforms—particularly TikTok, where dupe-related content has become extraordinarily popular—millions of consumers are proudly sharing their finds: affordable alternatives to luxury items that capture the aesthetic without the price tag or the logo. But this trend exists in a complex legal gray zone that’s forcing fashion houses, fast fashion retailers, and courts to grapple with questions about creativity, competition, and consumer rights.
Understanding Dupe Culture: More Than Just Knockoffs
A fashion dupe, short for “duplicate,” is an affordable product that mimics the design, aesthetic, or functionality of a high-end luxury item without using the original brand’s protected logos or trademarks. This distinction is crucial: dupes are fundamentally different from counterfeits, which are illegal copies designed to deceive consumers into believing they’re buying the genuine article by directly replicating trademarks and logos. Dupes, by contrast, openly present themselves as alternatives. Consumers buying an inexpensive version of a designer shoe know exactly what they’re purchasing—an affordable lookalike, not the original brand.
The legal space dupes occupy is murky precisely because they avoid the most obvious forms of trademark infringement. They don’t copy logos, they don’t claim to be the original brand, and often, consumers aren’t confused about the source. This challenges traditional trademark law, which has historically relied on the “likelihood of confusion” standard to determine infringement. When consumers deliberately seek out dupes and proudly share their finds on social media, can we really say they’re confused about what they’re buying?
The phenomenon has been turbocharged by social media influencers who have built entire platforms around finding and promoting the best dupes. These content creators compare fabrics, test durability, and provide side-by-side visual comparisons, effectively creating a new category of shopping guidance. Industry research suggests that younger consumers increasingly prioritize value and affordability over traditional brand loyalty, creating a substantial market for products that deliver the look without the luxury price premium. This generational shift represents a fundamental challenge to the traditional fashion business model, where brand prestige and exclusivity commanded premium pricing.
The Legal Framework: Where Fashion Meets Trademark Law
Fashion designs exist in a unique legal space that makes them particularly vulnerable to copying. The Lanham Act, America’s primary federal trademark statute, provides protection for brand names, logos, trade dress (the overall appearance and packaging of a product), and in specific circumstances, even colors. However, fashion law has historically struggled to protect what designers care about most: the actual design of their garments and accessories.
Unlike patents, which protect functional innovations, or copyrights, which protect artistic expression, fashion designs often fall into a gap. The Copyright Act traditionally excludes “useful articles” like clothing from copyright eligibility, protecting only separable artistic elements like fabric prints or ornamental features. This means that the overall silhouette, cut, and construction of a garment—the very things that make a design distinctive—are often unprotectable. Basic shapes, common design elements, functional features, and generic aesthetic concepts remain in the public domain, free for anyone to use.
This legal framework creates the gray zone where dupes flourish. A fast fashion brand can look at a luxury designer’s collection, analyze what’s trending, and create similar items that capture the aesthetic without crossing the bright line of copying protected elements. The question then becomes: when does inspiration become imitation, and when does imitation become infringement? Courts have struggled with this question for decades, and the rise of social media-driven dupe culture has made it even more pressing.
The Likelihood of Confusion Standard
When trademark disputes do arise in fashion, courts typically apply what’s known as the “Polaroid test,” established in trademark case law. This multi-factor analysis examines the strength of the original trademark, the degree of similarity between the products, evidence of actual consumer confusion, the defendant’s intent in adopting the mark, the proximity of the products in marketing channels, the likelihood of expansion into related markets, and the sophistication of the buyers. No single factor is dispositive; courts weigh all factors together to determine whether a reasonable consumer might be confused about the source, sponsorship, or affiliation of the products.
What makes this standard particularly interesting in the context of dupe culture is the emphasis on actual consumer confusion. In the past, courts might have been willing to infer confusion from similarity alone. But recent cases suggest a shift toward requiring tangible evidence that real consumers were actually confused. This is where dupes have an advantage: when consumers are deliberately seeking out affordable alternatives and know exactly what they’re buying, proving actual confusion becomes significantly harder.
Landmark Cases That Define the Legal Landscape
The evolution of dupe culture can be traced through several landmark legal cases that have shaped how courts approach fashion intellectual property disputes. These cases reveal the tensions between protecting brand identity and fostering competition, between rewarding creativity and allowing market accessibility.
When Dupes Win: The e.l.f. Cosmetics Victory
In December 2024, a California federal court delivered what many considered a watershed moment for dupe culture in the case of Benefit Cosmetics LLC v. e.l.f. Cosmetics, Inc. Benefit Cosmetics sued e.l.f. Cosmetics over the latter’s “Lash ‘N Roll” mascara, which Benefit claimed infringed its “Roller Lash” trademark and “Hook ‘N’ Roll” applicator brush trade dress. The twist? e.l.f. openly admitted it had taken cues from Benefit’s mascara when developing its product. Despite this admission, the court ruled in favor of e.l.f., finding no likelihood of confusion.
The court’s reasoning was illuminating. While acknowledging that Benefit’s trade dress had commercial strength and that the primary packaging was similar, the judge focused on e.l.f.’s distinguishable secondary packaging, which prominently featured its house mark and distinctive design elements. More importantly, Benefit failed to provide sufficient evidence of actual consumer confusion despite the products coexisting in the market for two years. The court concluded that Benefit had not shown that Lash ‘N Roll, while a dupe of Roller Lash, actually duped any consumers.
This case established an important principle: intent to copy, without intent to deceive, can actually be a neutral or even favorable factor in determining likelihood of confusion. Courts are willing to accept that companies can create similar products as long as they clearly distinguish their brand identity and don’t actively mislead consumers about the source. The decision demonstrates that perceived product similarities won’t automatically result in a finding of trademark infringement.
The Red Sole Saga: Christian Louboutin’s Global Battle
Perhaps no single design element has generated more international litigation than Christian Louboutin’s signature red sole. The French designer’s use of a specific shade of red on the outer sole of women’s high-heeled shoes has become one of fashion’s most recognizable features. But trademarking a single color applied to a specific part of a product has proven extraordinarily difficult, with dramatically different outcomes across jurisdictions.
In the United States, the 2012 case Christian Louboutin S.A. v. Yves Saint Laurent America Holdings, Inc. established important precedent. The Second Circuit Court of Appeals ruled that Louboutin’s red sole constitutes a valid trademark when the red outsole color contrasts with the upper shoe color. The court found that through substantial marketing investment and decades of consistent use since the 1990s, the red sole had acquired “secondary meaning”—meaning that in consumers’ minds, the primary significance of a red sole on a contrasting shoe is to identify Louboutin as the source, rather than merely as a decorative choice.
However, the court drew a critical limitation: the trademark protection doesn’t extend to monochromatic red shoes where both the upper and the sole are red. This is because in that context, the red sole isn’t functioning as a source identifier—it’s simply part of the overall color scheme of the shoe. This nuanced distinction shows how courts attempt to balance trademark protection with allowing competitors reasonable freedom in product design.
The international landscape has been far more varied. The Court of Justice of the European Union upheld the red sole trademark in 2018, emphasizing that a color applied to a specific position on a product doesn’t consist exclusively of a “shape” and therefore isn’t barred from trademark protection. Meanwhile, Japan’s Patent Office rejected Louboutin’s trademark application in 2022. Japanese courts ruled that red-soled high heels had been distributed in Japan before Louboutin entered the market, and that Louboutin’s premium pricing would make consumers more careful in distinguishing between brands. Switzerland’s Federal Supreme Court denied trademark status in 2017, finding that the red soles are merely an aesthetic element.
These divergent outcomes reveal a fundamental tension in color trademark law: one jurisdiction’s distinctive source identifier is another’s generic aesthetic choice. For brands operating globally, this creates enormous complexity in enforcement strategy and raises questions about whether universal design protection is even possible in an interconnected world.
Hermès and the MetaBirkin NFTs: Dupes Enter the Digital Age
As fashion brands increasingly explore digital spaces and the metaverse, trademark law has been forced to confront entirely new questions about how intellectual property rights extend beyond physical goods. The 2023 case Hermès International v. Rothschild provided the first major test of these principles in the NFT space.
In late 2021, artist Mason Rothschild created and sold 100 “MetaBirkin” NFTs—digital images of blurry, faux fur-covered handbags inspired by Hermès’ iconic Birkin bag. He positioned the project as artistic commentary on fashion’s history of animal cruelty and the industry’s movement toward fur-free initiatives. Hermès saw it differently: as an attempt to profit from the Birkin name’s extraordinary goodwill and consumer recognition. After Rothschild refused to comply with a cease-and-desist letter, Hermès sued for trademark infringement, dilution, and cybersquatting.
The case hinged on whether Rothschild’s NFTs constituted protected artistic expression under the First Amendment or commercial trademark use. Rothschild argued that his work was commentary on consumer culture using recognizable brands as the subject matter. The court applied the Rogers test (from Rogers v. Grimaldi), which holds that using another’s trademark in an expressive work is permissible if the use has artistic relevance and doesn’t explicitly mislead consumers about the source.
After deliberation, a Manhattan federal jury in February 2023 found Rothschild liable for trademark infringement, trademark dilution, and cybersquatting, awarding Hermès $133,000 in damages. The jury rejected Rothschild’s First Amendment defense, apparently persuaded by evidence showing that the MetaBirkin NFTs derived value from the Birkin name rather than engaging in pure artistic commentary.
This case established crucial precedent for the digital age: NFTs are not automatically protected as art simply by virtue of being digital or blockchain-based. Courts will examine the underlying intent and commercial purpose. For fashion brands, this provided some assurance that their intellectual property rights do extend into virtual spaces, even as the boundaries of that protection continue to evolve.
Gucci and Forever 21: The Stripe Wars
Few dupe disputes have been as public or contentious as the multi-year battle between Gucci and Forever 21 over striped designs. In late 2016, Gucci began sending cease-and-desist letters to Forever 21, demanding the fast fashion retailer stop selling items featuring Gucci’s trademarked blue-red-blue and green-red-green stripe webbing. These stripes have been part of Gucci’s brand identity since the 1950s and 1960s, with U.S. trademark registrations dating back to 1979 and 1988.
Rather than quietly complying or negotiating a settlement, Forever 21 took an aggressive stance. In June 2017, the retailer filed a preemptive lawsuit in U.S. District Court for the Central District of California asking the court to cancel Gucci’s stripe trademarks entirely. Forever 21 argued that Gucci’s stripe designs were too common to serve as trademarks, that they were purely decorative features rather than source identifiers, and that striped designs were widely used in fashion. To support this argument, Forever 21 submitted evidence showing numerous other brands using similar striped patterns.
Gucci responded forcefully, filing counterclaims for trademark infringement, dilution, and unfair competition. The luxury house argued that Forever 21 wasn’t just using generic stripes but was deliberately copying Gucci’s specific stripe combinations and placement to create consumer association with Gucci products.
Initially, Federal Judge Fernando M. Olguin sided with Gucci, dismissing Forever 21’s complaint with skeptical language about whether the retailer had sufficiently alleged facts to support claims that Gucci’s marks lacked distinctiveness. However, after Forever 21 amended its complaint and strengthened its evidence of third-party use, the court reversed course in February 2018, finding that Forever 21’s trademark cancellation claims were viable and should be decided at trial.
The case never reached that trial. In November 2018, the parties announced they had reached a settlement, with terms kept confidential. While the specific agreement remains unknown, such settlements typically don’t involve luxury brands surrendering trademark registrations, which are fundamental business assets.
The significance of this case extends beyond the specific outcome. It demonstrated that even iconic, decades-old trademarks can face serious cancellation challenges when evidence shows widespread use of similar design elements by other marketplace participants. It also showed that fast fashion companies are increasingly willing to fight back legally rather than treating settlements as merely a cost of doing business.
Adidas v. Skechers: Trade Dress Distinctions
The ongoing litigation between Adidas and Skechers illustrates how courts distinguish between different types of intellectual property protection in fashion. Adidas sued Skechers over multiple shoe designs, claiming that Skechers’ “Onix” model violated the trade dress of Adidas’ “Stan Smith” shoe, while the “Cross Court” shoe violated Adidas’ famous three-stripe trademark.
The Ninth Circuit Court of Appeals delivered a split decision. The appellate court sustained the preliminary injunction for the Stan Smith trade dress protection, finding that Skechers’ Onix shoe could cause irreparable damage to Adidas. The court noted Adidas’ exclusive use of the Stan Smith trade dress since the 1970s and the overall distinctive appearance of the shoe. However, the appellate court reversed the preliminary injunction on the three-stripe trademark claim, finding insufficient evidence of the type of consumer confusion required for trademark infringement.
This case demonstrates that trade dress protection (the overall appearance of a product) and trademark protection (specific design elements like stripes) require different types and levels of proof. Courts may protect a holistic product design while still allowing competitors to use individual design elements that have become common in the industry.
How Brands Are Fighting Back: A Multi-Pronged Approach
As dupe culture has expanded, fashion brands have developed increasingly sophisticated strategies to protect their intellectual property. These approaches range from traditional legal tactics to cutting-edge technology solutions to strategic marketing that acknowledges the dupe phenomenon.
On the legal front, brands are pursuing more comprehensive trademark registration strategies. Rather than simply registering names and logos, companies are seeking protection for colors, design elements, product configurations, and manufacturing techniques. They’re also increasingly relying on trade dress protection, which guards the overall appearance and total image of a product. This requires proving that the design has acquired distinctiveness in consumers’ minds and serves a source-identifying function rather than being merely functional or aesthetic.
Technology is playing an increasingly central role in brand protection strategies. Some luxury conglomerates have invested in blockchain solutions that create digital certificates of authenticity for products. When integrated with physical products through QR codes, RFID chips, or NFC tags, these systems create verifiable chains of custody from manufacturer to consumer. This technology helps combat counterfeits and supports the authenticated luxury resale market.
Artificial intelligence has become another tool for brand protection. Some companies use AI-powered monitoring systems to scan e-commerce platforms, social media, and online marketplaces for potentially infringing products. These systems can identify visual similarities and flag suspicious sellers, making enforcement more feasible against the high volume of dupes appearing on digital platforms.
Some brands have adopted strategic marketing approaches that acknowledge dupe culture rather than simply fighting it legally. When certain products become frequently copied, some companies create content explaining their value proposition—superior materials, ethical manufacturing, durability, and design innovation. A few brands have even created marketing that directly references dupes, using their proliferation as social proof of desirability while articulating why the original justifies its price point.
Practical Guidance
For consumers, making informed choices means understanding the distinction between dupes (legal alternatives) and counterfeits (illegal fakes with copied logos). Considering environmental and labor implications of ultra-low-cost fast fashion can inform purchasing decisions. Using dupes to test whether you genuinely like a style before making expensive purchases can be a reasonable approach. However, purchasing products with counterfeit logos harms both brands and consumers and is illegal.
For brands, proactive protection includes comprehensive intellectual property registration where viable, documentation of design processes for potential litigation evidence, and systematic marketplace monitoring. However, enforcement should be strategic and selective, focusing on the most harmful infringements rather than attempting to eliminate every similar product. Sometimes marketing that emphasizes authentic quality and values is more effective than extensive legal campaigns.
For designers, particularly independent creators, building distinctive brand identity beyond easily copied design elements—through storytelling, values, direct customer relationships, and community—can create differentiation that legal mechanisms alone cannot provide. Distinctive branding, transparent production practices, and authentic customer engagement can help smaller brands compete even when facing copying from larger competitors.
Looking Ahead
Dupe culture reflects broader tensions in contemporary commerce: between accessibility and exclusivity, between individual creativity and collective market benefit, between profit maximization and ethical production. How the fashion industry, legal system, and consumers navigate these tensions will shape not only fashion commerce but broader questions about intellectual property, creativity, and fairness in digital markets.
The brands likely to succeed aren’t necessarily those that win every legal battle or completely eliminate dupes. Rather, successful brands will build products, communities, and values that create genuine differentiation—intangible elements that keep customers loyal despite cheaper alternatives. Dupe culture has revealed that for some products, consumers were primarily paying for logos and brand prestige rather than superior quality or design. Brands that deliver genuine value that justifies premium pricing make the question of dupes less relevant, because their customers want the authentic product for reasons beyond mere appearance.
The legal landscape will continue evolving as courts address new technologies and business models. Trademark law developed for physical goods must adapt to digital and virtual goods. The balance between protecting creativity and fostering competition will require ongoing calibration. Consumer behavior, particularly among younger generations, will continue influencing market dynamics and potentially legal standards.
Ultimately, dupe culture isn’t simply a legal issue, an ethical question, or a business challenge—it encompasses all these dimensions simultaneously. Solutions will require multiple approaches: thoughtful legal frameworks, innovative technology, responsible business practices, and informed consumer choices. The conversation about dupes is really a conversation about what we value in creativity, how we balance access and exclusivity, and how commercial markets can function fairly in an interconnected, fast-moving digital world.
This article provides general information about trademark law and fashion industry trends. For specific legal guidance regarding intellectual property issues, consult with a qualified attorney. Case information is based on publicly available court documents and legal reporting
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