Introduction: Dupe Culture

 Legal Background: Comparative Advertising Law

Dupe advertising is a form of comparative advertising – a practice that involves brands comparing their products to those of their competitors. ⁷ These advertisements may reference competitor products directly, either by name (“compare [product being advertised] to [other leading product]” or “if you like [competitor brand], you’ll love [advertiser’s brand]”) or by description (“tastes better than the leading brand,” or “taste preferred 3 to 1 as compared to the leading brand.”) ⁸ These claims can help consumers recognize how brands position themselves in a competitive market. ⁹

Courts have consistently upheld the principle that comparisons in advertising are permissible in fair competition, as long as the comparison is honest and not misleading. ¹⁰ The Eighth Circuit ruled that an advertiser does not commit unfair competition merely because it refers to another’s product by name in order to win over customers interested in a lower cost copy of that product if the reference is truthful and non-confusing.” ¹¹ A federal court confirmed this idea where an advertiser used the phrase “If You Like Estee Lauder…You’ll Love Beauty USA.” ¹² The court deemed this acceptable because the comparison was not misleading to consumers, showing that “If you like X, you’ll like Y” comparisons are permissible in advertising when accurately representing the similarities between two products – but may be unlawful if they exaggerate or misrepresent those similarities. ¹³ The Second Circuit supported this idea where a brand described their garments as copies of Dior originals on their hand tags. ¹⁴ The Court held that the law “does not prohibit a commercial rival’s truthfully denominating his goods a copy of a design in the public domain, though he uses the name of the designer to do so.” ¹⁵ These rulings emphasize that as long as comparative advertising is not false or misleading, it is legally permissible, can benefit consumers, and can promote healthy competition. 

Courts have held that comparative advertising can either invite consumers to compare products against one another, or may assert specific claims about a product’s characteristics, such as ingredients or effectiveness. ¹⁶ These assertions of fact can come under legal scrutiny as to whether they are fraudulent or misleading.” ¹⁷ One case involved the perfume brand Shalimar, which challenged another brand’s claims that their product was “similar” to Shamilar and that “if you like [Shalimar] then you’ll love [Fragrance S].” ¹⁸ The Ninth Circuit concluded that there was a genuine issue of fact regarding the similarity of the products based on expert affidavits which found that the products were different in “chemical composition, fragrance, and longevity,” calling the validity of the comparative claims into question. ¹⁹ Here, the “If you like X, you’ll like Y” comparison raised legal concerns precisely because it may have misled consumers. 

While the FTC and courts have not specifically addressed the term “dupe,” its popularity has sparked an increase in litigation surrounding this concept. ²⁰ This trend will challenge courts to define how dupes should be treated, especially in comparison to traditional counterfeits and other forms of comparative advertising. This raises compelling questions: When does calling something a “dupe” qualify as comparative advertising, and how might it be treated differently from traditional forms of imitation?

Recent “Dupe” Litigation

As brands increasingly embrace the “dupe” trend in their marketing strategies, the legal landscape surrounding this practice is becoming more complex. Several brands have used “dupe” marketing to substantiate claims of false advertising and trademark infringement. ²² Aramara argues that MCO Beauty’s reference to “dupe” is an admission that their Ultra-Dew Serum is intended to replicate and profit from Glow Recipe’s Dew Drops. ²³ This raises the question of the legality of using “dupes” as a marketing tool. 

The outcomes of the Aramara case and similar lawsuits could set critical precedents. They may determine whether “dupes” will face more stringent legal boundaries and whether the term itself may come under increased scrutiny. This sparks a broader discussion: Are “dupes” a legitimate marketing strategy, or do they represent an acknowledgment of intentional imitation and deceptive business practices?

Each case involving dupes will be very fact-specific and complex, but the underlying question is whether the consuming public is actually confused by the products in question.²⁴ It’s noteworthy that the awareness of consumers plays a significant role. When products are labeled as “dupes,” the public generally understands that these are not the original items. This understanding creates a clear distinction between dupes and traditional counterfeit products, which are designed to deceive consumers. As a result, dupes will likely face a lower risk of infringement liability compared to traditional counterfeits, when they share the following characteristics which set dupes apart:

1. As opposed to traditional counterfeits, the product does not falsely present itself as the original brand to deceive consumers. 

Many “dupes” are transparent about their nature and aren’t meant to mislead anyone into thinking they are purchasing the original item. ²⁵ The growing trend of dupe culture indicates that consumers recognize these products for what they are and aren’t confused. This supports the idea that dupes can be considered a form of comparative advertising. 

2. Promoting the product as a “dupe” is not misleading as to the quality or features of the product in comparison to the original. 

While comparative advertising is generally permissible, brands must take care to avoid misleading consumers regarding the quality and features of the product. Promoting a product as a dupe becomes problematic if consumers are led to believe that a dupe possesses specific characteristics comparable to the original. ²⁶ If the products are too different to justify the label “dupe,” brands may be vulnerable to false advertising claims. These sellers should carefully consider what specific comparisons they are making to the original product, and whether they will hold up as true. 

3. A “dupe” does not include protected elements of the product being copied. 

Dupes are often characterized by their resemblance to well-known products without infringing on their protected elements. ²⁷ These products are often similar in appearance, but avoid copying brand logos. In fashion, a dupe might closely mirror a high-end counterpart by replicating only its appearance rather than branding signals. ²⁸ Creators of intentional dupes should navigate the legal landscape carefully, not only avoiding trademark infringement but steering clear of other protected aspects, such as trade secrets or patented formulas. Even less recognizable protections can evoke legal repercussions, making it essential to respect the intellectual property of original products. ²⁹

Conclusion

The legality of “dupe” marketing hinges on potential consumer confusion. Dupes that distinctly differentiate themselves from original products are less likely to face legal scrutiny, as they do not deceive consumers. However, brands must exercise caution in advertising to avoid making false or misleading claims when comparing products. While dupes will likely receive a different legal standard than traditional counterfeits, meticulous attention to detail, such as similarities, validity of advertising claims, and protected elements, is crucial, as these situations will require a case-by-case factual analysis. 

1. Dupe, Oxford Eng. Dictionary, https://www.oed.com/dictionary/dupe_n2 [https://perma.cc/6AVP-D2H2]
2. Id.
3. Id.
4. Id. See also Jennifer Ortakales Dawkins, Gen Z is the ‘Dupe’ Generation, Business Insider (Dec. 14, 2023), https://www.businessinsider.com/gen-z-is-the-dupe-generation-2023-12
5. Id. See also Jennifer Ortakales Dawkins, Gen Z is the ‘Dupe’ Generation, Business Insider (Dec. 14, 2023), https://www.businessinsider.com/gen-z-is-the-dupe-generation-2023-12
6. Alexandra J. Roberts, Dupes, NYU JIPEL, 94, 94 (2025).
7. Id.
8. Id. See also John E. Villafranco, Comparative Advertising Law in the US, Thomson Reuters Practical Law,https://s3.amazonaws.com/cdn.kelleydrye.com/content/uploads/attachments/Comparative-Advertising-Law-in-the-US.pdf
9. Id.
10. Id.
11. Calvin Klein Cosmetics Corp. v. Parfums de Coeur, Ltd., 824 F.2d 665, 668 (8th Cir. 1987)
12. Diversified Mktg., Inc. v. Estee Lauder, Inc., 705 F. Supp. 128, 137 (S.D.N.Y. 1988).
13. Id.
14. Societe Comptoir De L’Industrie Cotonniere Etablissements Boussac v. Alexander’s Dept. Stores, Inc., 299 F.2d 33, 36 (2d Cir. 1962).
15. Id.
16. Rexall Sundown, Inc. v. Perrigo Co., 651 F. Supp. 2d 9, 21 (E.D.N.Y. 2009) (citing Axcan Scandipharm Inc. v. Ethex Corp., 585 F. Supp. 2d 1067, 1083 (D. Minn. 2007)
17. Id.
18. Saxony Prod., Inc. v. Guerlain, Inc., 513 F.2d 716, 721 (9th Cir. 1975).
19. Id.
20. See Roberts, Supra note 6, at 121; Glow Recipe Targets MCoBeauty Over Dupe Product in New Lawsuit, The Fashion Law (Jun. 10, 2025), https://www.thefashionlaw.com/glow-recipe-targets-mcobeauty-over-dupe-product-in-new-lawsuit/
22. https://jipel.law.nyu.edu/dupes/#easy-footnote-bottom-7-9939, See also Complaint at 22, Vans, Inc. v. Primark Stores Ltd., No. 1:18-cv-07214 (E.D.N.Y. Dec. 18, 2018), Complaint at 6, It’s a 10, Inc. v. Key Brands Intl., Ltd., No. 0:15-cv-61291-WJZ (S.D. Fla. June 17, 2015), Complaint at 2, Amazon.com, No. 2:20-cv-01662. An ongoing case shedding light on this issue is Aramara Beauty v. MCO Beauty PTY Limited.²¹Aramara Beauty v. MCO Beauty PTY Limited, 1:25-cv-04808 (SDNY).
23. Glow Recipe Targets MCoBeauty Over Dupe Product in New Lawsuit, The Fashion Law (Jun. 10, 2025), https://www.thefashionlaw.com/glow-recipe-targets-mcobeauty-over-dupe-product-in-new-lawsuit/
24. See Lexy Lebsack, Analyzing Beauty’s Latest Dupe Lawsuits with Trademark Atorney Elizabeth Milian, plus Industry News, Glossy (Jul. 17, 2025), https://www.glossy.co/podcasts/analyzing-beautys-latest-dupe-lawsuits-with-trademark-attorney-elizabeth-milian-plus-industry-news/
25. See McCoy Russell, Trademarks and Dupe Culture: Dupe vs Counterfeit, McCoy Russell LLP (Dec. 10, 2024), https://www.mccrus.com/2024/12/10/trademarks-and-dupe-culture-dupe-vs-counterfeit/, see also HR Fitzmorris, Duped or Duplicated? The Difference Between a Counterfeit And an Accessible Homage, Wash. Journal of Law, Tech, & Arts (Mar. 13, 2023), https://wjlta.com/2023/03/13/duped-or-duplicated-the-difference-between-a-counterfeit-and-an-accessible-homage/
26. Sykes Lab’y, Inc. v. Kalvin, 610 F. Supp. 849, 854-55 (C.D. Cal. 1985) (“The sole limitation on this freedom [to copy another’s product and reference their mark] is that the copyist cannot use another’s trademark in a manner that would confuse the public as to the copy’s source and he cannot make false claims about the similarity or respective quality of the products involved.”).
27. Dupes, The Fashion Law, https://www.thefashionlaw.com/dupes/
28. Id. See also Lucy Maguire, Gen Z Loves Dupes. Is This Bad News for Luxury Fashion Brands?, Vogue Bus. (Apr. 10, 2023), https://www.voguebusiness.com/fashion/gen-z-loves-dupes-is-this-bad-news-for-luxury-fashion-brands
29. See Complaint at 12, Lashify, Inc. v. Kiss Nail Prods., Inc., No. 2:20-cv-10023 (D.N.J. Aug. 5, 2020). https://www.law360.com/articles/1322492/itc-launches-fake-eyelash-computer-gear-oled-probes.