Beauty dupes have never been more popular. The same goes for the lawsuits that try to remove them from store shelves.
“The potential harm to brands that comes from dupes is meaningful,” Julie Zerbo, New York-based attorney and founder and editor-in-chief of The Fashion Law, told Glossy. “In light of changing consumer behaviors, as a result of the mass market nature and availability of dupes and the economic climate, it’s a perfect storm right now for dupes. It’s kind of their moment.”
As a colloquial term, the word “dupe” is shorthand for “duplicate” and loosely denotes a product that is inspired by a higher-priced item, often a category leader or buzzy luxury offering. A dupe is different from a counterfeit product that presents itself as the original.
“Copying or imitating another brand doesn’t necessarily mean that you’ve done something that’s illegal,” said Florida-based brand protection attorney Elizabeth Milian. “Generally speaking, this might surprise people, [but] dupes may not be illegal on their own.”
As previously reported by Glossy, dupes have experienced a boom across the industry over the past few years. Top trusted brands routinely dabble in dupes, like Colourpop, Nyx, Maybelline and L’Oréal Paris, while global power players like MCoBeauty and Catrice have scaled their businesses through popular dupes of luxury products.
According to a 2024 study by Mintel market research company, seven in 10 makeup users have purchased a dupe, and more than half of those surveyed actively look for makeup dupes on social media.
This popularity has been a catalyst for brands seeking brand protection through the courts. In Thursday’s episode of The Glossy Beauty Podcast, Milian walks Glossy through several recent lawsuits.
For example, last month, the 20-year-old sunscreen brand Supergoop! sued retailer Five Below, alleging its Sugargirl! in-house sunscreen brand is a copycat product line that imitates its products in order to trade on the consumer recognition of the Supergoop! logo and packaging. Another case making headlines this month is a suit filed by Sol de Janeiro against MCoBeauty, alleging that its $12 body mists are infringing on its range of popular $25 body mists. Both are ongoing.
But perhaps the most dynamic example is one of the only settled cases that hasn’t settled outside of court. In 2023, Benefit sued E.l.f. Beauty for duping its Roller Lash mascara, a $29 product packed in a pink and black tube that it launched in 2015.
E.l.f. Beauty launched a dupe called Lash ‘N Roll in 2022 for $6, also in black and pink packaging. Benefit’s Roller Lash mascara is a vital part of its business: As of 2023, it had sold $300 million worth of the product.
“If you actually read the court proceedings, there are pages and pages of discussion on: How similar does the wand look? How similar does the cap look? Is it the same shade of pink? Is there a pattern on both of the wands?” Milian said. “E.l.f. was able to show in their arguments that the shades of pink were different and that there was a reason that they were different in the manufacturing process, and with their price points, it’s harder to say that there’s confusion.”
In December, a judge ruled in favor of E.l.f. Beauty. In short, a brand being inspired by a luxury product is not a crime; confusing a consumer into thinking the dupe is the real deal, however, is, which Benefit was not able to prove.
“What these cases are hinging on is, ‘Is the consuming public actually confused?’” said Milian. “Consumer confusion has to be more than a hypothetical. It can’t just be that it could happen.”
“There is a gray area [in the law] here, and that’s why we are seeing a flurry of activity among companies making dupes,” said Zerbo.
It’s very common for duped brands to regularly bring lawsuits against the companies allegedly infringing on their trade dress, or IP, such as packaging, branding, logos or any other unique asset. This is primarily to remove dupes from store shelves.
“It sends a message to companies making dupes that the company being duped will take legal action,” Zerbo told Glossy. “So there’s a message there whether or not the case is merited or not. Anybody can file a complaint, [and] there’s no guarantee that they have meaningful claims.”
While the majority of beauty dupe lawsuits pop up then quickly disappear — often privately settling outside of court — Milian told Glossy that they are a vital action for long-term brand IP protection. “[Brands should] want to police the market and act early to shut down any conduct that they think is excessive,” Milian said. This is to prevent something called ‘coexistence,’ where a brand may have a harder time enforcing its IP if the company allows dupes to gain market share unchecked.
“Brands do have a duty [to police their IP],” said Milian. “If you were to notice that there was someone copying you for, let’s say, two years, … you’ve allowed the two products to exist in the marketplace, and it may be harder to make that argument that consumers were confused.”
Josh Gerben, a Washington D.C.-based trademark attorney, told Glossy that the vast majority of the thousands of trade dress infringement cases involving dupes that he’s seen settled have been without any monetary gain.
“Almost never does money exchange hands,” Gerben told Glossy. “The idea that you just get [the sale of the dupe] to stop is the vast majority of the effort and investment in legal that these brands make, because as long as they can protect their ability to sell product and make their money off of the product that’s so popular [that is enough].”
The biggest expense for brands across these types of cases is normally legal fees. “There’s a calculation that occurs [into] how much is legal going to cost to keep this case open and moving, versus if we just get it shut down and we get what we need to move on,” Gerben said.
A ruling by a judge or jury almost never happens, which makes Benefit’s case against E.l.f. Beauty so unique.
The problem in successfully stifling a brand’s dupes is that companies really can’t claim absolute monopolies over generic product attributes, like a package’s shape or the notes of a perfume, said Zerbo.
“This new flurry of ‘dupe cases’ is still early on, but we can draw a parallel to fast fashion,” Zerbo said. “We have seen all types of infringement in fashion, and we still have fast fashion. Not only has fast fashion not gone away, but it’s also gotten faster and bigger.”
