This is an episode of the Glossy Beauty Podcast, which features candid conversations about how today’s trends are shaping the future of the beauty and wellness industries. More from the series →
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Beauty dupes have never been more popular. But is mimicking a competitor a sound business decision?
“This might surprise people, [but] dupes may not be illegal on their own,” brand protection attorney Elizabeth Milian told Glossy. The word “dupe” is shorthand for “duplicate” and often denotes a product that is inspired by a higher-priced luxury offering. A dupe is different from a counterfeit product that presents itself as the original.
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. While the majority of these lawsuits pop up then quickly disappear, Milian told Glossy they’re a vital action for long-term brand IP protection.
Most cases quickly settle out of court and so there is little legal precedent, yet most are based upon the same thing: Is consumer confusion happening? To better understand this growing issue, and how it impacts beauty business on both sides, Milian breaks down four recent cases.
“[Each case] is going to be very nuanced and very fact specific,” Milian said. “What these cases are hinging on is, ‘Is the consuming public actually confused?’ And so it’s really an interesting situation where the public is playing a big piece [in the case] and what the standard is for how we are going to decide these cases.”
This includes a December ruling involving Benefit suing E.l.f. Beauty for allegedly duping their Roller Lash, a popular product that the brand introduced in 2015 and which had achieved approximately $300 million in sales in the U.S. through 2023, when it initiated its lawsuit, Milian said.
Milian also digs into a case filed last month by Supergoop! against retailer Five Below for its in-house sunscreen line Sugargirl!. Supergoop alleges this is a copycat product line that imitates its products in order to trade on the consumer recognition of the Supergoop! logo and packaging, said Milian.
Finally, she unpacks a case by Sol de Janeiro against MCoBeauty and another filed by Glow Recipe against Makeup by Mario. These two tackle fragrance and naming copyright, respectively.
But first, Lexy Lebsack is joined by senior reporter Emily Jensen to discuss the news of the week. This includes a look at Amazon’s Prime Day sale results. The retailer’s four-day Prime Day sale beat all previous sales records, according to the company, with around a quarter of products added to carts being beauty, personal care, or health and wellness offerings, according to business outsourcing company SupportNinja.
Lebsack and Jensen also discuss the growing beauty sponsorship opportunity in wrestling. L’Oréal-owned Maybelline announced last week that it is now the official cosmetics partner of professional wrestling organization World Wrestling Entertainment. WWE generated $1.39 billion in revenue for 2024, and it currently has around 90 million U.S.-based fans. This comes on the heels of Neutrogena’s partnership with John Cena and E.l.f. Beauty’s sponsorship of the largest girls wrestling event, called Wonder Women of Wrestling Varsity Tournament, earlier this year.
On managing expectations from a dupe suit:
Milian: “There are a lot of things that can happen, and typically what this is going to look like [depends on] the brand that’s bringing the lawsuit. When they initiate the lawsuit, they’re going to have a list of demands, and these will tend to include things like, ‘Stop selling your product immediately.’ Potentially, you have to destroy your products that you already have in production or that you have on shelves. You have to withdraw them and destroy them, and then you’re usually going to see a request for the other brand to hand over the profits from the sale of that product. And that’s before you get to attorney fees or other types of legal consequences where the person bringing the lawsuit is saying, ‘This is what we should have in return for the behavior.'”
On unpacking Benefit’s case against E.l.f. Beauty
Milian: “These cases are very detailed. And so 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? And it really has to go layer by layer to almost put one versus the other and see where do the similarities start? Where do they end? And this case was interesting, because 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 also, too, with their price points. It’s harder to say that there’s confusion potentially when the price point is $29 versus $6, because if you were perhaps on autopilot trying to purchase a curling mascara, perhaps that difference in price is going to grab your attention at some point to help you avoid confusion. And so the cases are really looking at every detail very carefully to try to reach the question of, ‘Is consumer confusion happening?’ And it has to be more than a hypothetical. It can’t just be that it could happen.”
On learning from previous beauty dupe cases
Milian: “If I’m a brand and I’m introducing a product into the marketplace and I’m looking at existing brands, I’m not going to take the decision in [one of these cases] as permission or some type of green light to indicate that I can be making bold choices about how close my product is to a competing product. I think the decision in [some of these cases we discussed today] brings attention to why detail is important and why distinctiveness is important, but it’s definitely going to be decided on a case-by-case basis.”
