This summer, a new line of Costco hoodies, jackets and pants went viral. Consumers claimed that they looked and felt very similar to their Lululemon favorites – namely the “subca” hoodie, “define” jacket and “ABC” pants – but at a fraction of the cost. The Lululemon “Scuba” hoodie, for example, can retail for up to $118 on the company’s website, while the Costco lookalike costs $8.
In July, Lululemon filed a lawsuit against Costco, alleging that its “confusingly similar” items crossed the line into trademark infringement, costing the company lost profits and reputation damages. Unfortunately, Lululemon is not alone. Viral knockoffs, known to the social media community as “dupes,” are now seemingly everywhere (the term “dupe” now has 360,000 posts on TikTok alone!).
Why? As the cost of goods continues to rise, consumers care more about affordability than buying “the real thing.” Shockingly, one survey found that more than 8 out of 10 (81.6%) of shoppers think Costco should keep making its Lululemon dupes.
This growing demand for dupes is not lost on retailers, and many are pressuring manufacturers to keep up. However, what seems like a smart business move doesn’t come without its risks. Below are some of the most common questions retail manufacturers should ask themselves before jumping on the “dupe” bandwagon.
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What is the Difference Between Dupes and Counterfeit Goods?
Counterfeit goods typically directly copy brand names and imitate logos. Sometimes, even the person purchasing the product may not be aware that it is counterfeit. Legal cases against counterfeits are usually straightforward, because the intent to mislead consumers is clear and the copied trademarks are nearly identical.
“Dupes,” on the other hand, often present more nuanced legal questions. They typically do not directly copy trademarks or logos, but the trade dress. Trade dress is the look and feel of a product – like the shape, color or aesthetic.
One of the most egregious examples of a dupe was last year’s viral “Wirkin” bag – Walmart’s $80 dupe of Hermès’ luxury $10,000+ Birkin handbag. Walmart’s version lacked the Hermès logos, but it was clear that the bag was a copycat: imitating the signature shape, hardware, straps and charms. Other recent viral examples include Target’s Miu Miu sandal dupes and Chloe bag lookalikes on Amazon.
When Does a Dupe Legally Cross the Line into Trademark Infringement?
Some shapes, styles and colors will inevitably be consistent across brands – this has always been the case. However, trademark infringement occurs when two products are so similar that consumers are likely to confuse one brand with another. For example, in the lawsuit between Costco and Lululemon, Lululemon argues that the “ordinary consumer” would not be able to tell the difference between their $118 leggings and Costco’s $8 dupes.
Should Retail Manufacturers Hop on the Dupe Bandwagon?
While it’s tempting to hop on the viral-worthy copycat bandwagon, manufacturers should resist the urge. In doing so, they directly expose themselves to costly lawsuits – ones they are likely to lose. Between attorney fees, court costs and settlement negotiations, this can cost a retailer and/or the manufacturer behind the product millions of dollars in legal fees.
Plus, relying on dupes instead of curating a distinct brand style could cause reputational damage. Consumers may question the uniqueness and quality of a brand that consistently copies others.
For those that decide to take the risk, it’s important to tread carefully. Brands should make sure not to include another brand’s name or logo anywhere on their product or its packaging. Also, using the “dupe” buzzword on social media might seem like a smart marketing tactic (e.g. “this hoodie is a Lululemon dupe!”), but it can demonstrate that you intended to confuse consumers and strengthen claims of infringement.
What can Brands do to Protect Themselves from Imitators?
Brands can protect themselves from imitators by registering trademarks and design patents early across all relevant markets, securing exclusive rights to their names, logos and unique product features.
Additionally, brands should actively monitor online marketplaces such as Amazon, eBay and TikTok Shop for unauthorized sellers or counterfeit listings. Prompt enforcement through cease-and-desist letters and collaboration with marketplaces to remove infringing products is essential to maintaining brand integrity.
Brands also should be sure to engage a trademark or intellectual property (IP) attorney early on. They can help create strategies to ensure protection exists not only in the U.S. but around the world.
In the social media age, brands are under extreme pressure to create viral-worthy products. Dupes seem like a slam dunk: by copying products already known to be popular with consumers, brands can grab attention on TikTok or Instagram with low prices while skipping the long, complex process of product development. However, as the adage goes, if it’s too good to be true, it probably is. Dupes expose brands to costly legal battles and significant reputational risks. My advice? Successful brands are built on originality – not imitation.
Josh Gerben, Esq. is a nationally recognized trademark attorney and the Founder and Principal of Gerben IP. Since launching the firm in 2008, he has overseen the registration of over 8,000 trademarks and handled over 500 trademark disputes. Gerben’s practice focuses on building and defending global trademark portfolios for clients. Frequently quoted by major media outlets like CNBC, CNN, The New York Times, and The Wall Street Journal, he is widely regarded as a leading authority in trademark law.
