The rise of “dupe culture” has forced brand owners and courts to consider increasingly complex questions about the legal protectability of product appearance, consumer perception, and market reputation. While our recent Westlaw Today/Reuters piece broadly examined dupe culture, including brand responses and how platforms are shaping enforcement, the litigation landscape continues to evolve. In courtrooms, the questions are clear: Can brands protect the visual identity of their products, and what must they plead to survive an early challenge? For practitioners, the answers are mixed.
Lululemon’s “DUPE” Trademark Strategy: Litigation Implications
Lululemon’s recent filing to secure trademark protection for a “DUPE”-formative mark signals a new phase in anti‑dupe strategy: attempting to secure protection before copycats even enter the market. Even with USPTO registration, translating that into effective enforcement will be challenging.
Courts have repeatedly pushed back on attempts to monopolize conceptual or descriptive terms. The Ninth Circuit has cautioned against trademark protection that would effectively grant exclusive rights in a popular, expressive phrase consumers desire for its aesthetic appeal, emphasizing that the Lanham Act does not permit the monopolization of expressions divorced from source identification. See LTTB LLC v. Redbubble, Inc., 840 F. App’x 148, 150 (9th Cir. 2021). Similarly, in Hermes Int’l v. Rothschild, 590 F. Supp. 3d 647 (S.D.N.Y. 2022), the Southern District of New York refused to treat the defendant’s use of a derivative term as categorically immune, instead grounding its analysis in confusion and intent—even where expressive or parodic elements were present. In classic apparel‑copying cases such as adidas Am., Inc. v. Skechers USA, Inc., 890 F.3d 747, 756–58 (9th Cir. 2018), courts have emphasized that intentional imitation still drives the confusion analysis,as deliberate copying supports an inference that the defendant sought to trade on consumer association with the senior mark.
Lululemon’s proactive approach will likely face challenges including descriptiveness attacks, overbreadth, and motions to dismiss centered on whether a “dupe” mark inherently identifies source; litigation strategy should anticipate these defenses.
Design Patents: Courts Recalibrate Similarity Standards
Dupe disputes rarely involve trademarks or trade dress alone. Although those rights can develop through common law or federal registration, they often fail to capture a core issue—ornamental similarity. Consequently, brands are increasingly relying on design patents, which define rights in an article’s ornamental features with greater specificity, as a more precise tool for dupe enforcement.
In Columbia Sportswear N. Am., Inc. v. Seirus Innovative Accessories, Inc., 942 F.3d 1119 (Fed. Cir. 2019), the court affirmed that logos and minor design elements may factor into the ordinary‑observer analysis (which is the test for design patent infringement), but not necessarily in ways that shield defendants from liability. This matters in dupe litigation because copycats often add trivial changes or visible branding to argue non‑infringement; Columbia clarifies those changes are not dispositive.
Meanwhile, LKQ Corp. v. GM Glob. Tech. Operations LLC, 102 F.4th 1280 (Fed. Cir. 2024), one of the most significant design patent decisions in years, opened the door to rethinking design patent obviousness standards. If courts begin invalidating more design patents, plaintiffs may increasingly shift weight back onto trade dress theories or rely even more heavily on the combined pleadings strategy. While older, Apple Inc. v. Samsung Electronics Co., Ltd. 786 F.3d 983 (Fed. Cir. 2015), rev’d in part, 580 U.S. 53 (2016) remains foundational as precedent demonstrating that design patent protection extends broadly where the accused product’s overall visual appearance is likely to drive consumer purchasing decisions.
The result: dupe litigation often requires a mixed‑IP playbook, and plaintiffs who overlook the interaction between design patents and trade dress risk losing momentum at the motion‑to‑dismiss stage.
Trade Dress Claims Demand Precision, Not Aesthetics
Courts increasingly demand precision in consumer product trade dress claims, particularly where claimed features verge on functionality or aesthetics. Plaintiffs can survive early dismissal by clearly articulating the specific combination and arrangement of visual features at issue, rather than asserting abstract rights in functional concepts. See Millennium Lab’ys, Inc. v. Ameritox, Ltd., 817 F.3d 1123 (9th Cir. 2016); Crocs, Inc. v. International Trade Commission, 598 F.3d 1294 (Fed. Cir. 2010).
Contrastingly, courts regularly dismiss claims based on broad or conceptual descriptions, rejecting “look‑and‑feel” theories, conclusory non‑functionality assertions, and allegations that fail to plead acquired distinctiveness with particularity. See, e.g., Vital Pharms., Inc. v. Monster Energy Co., 553 F. Supp. 3d 1180 (S.D. Fla. 2021); GeigTech E. Bay LLC v. Lutron Elecs. Co., 352 F. Supp. 3d 265 (S.D.N.Y. 2018); SportFuel, Inc. v. PepsiCo, Inc., 932 F.3d 589 (7th Cir. 2019).
In short, dupe era trade dress litigation requires more than aesthetics—it requires pleadings with surgical specificity, evidence of non‑functionality, and early‑stage proof of consumer recognition.
Weighing Consumer Context and Platforms
Courts are increasingly taking a real-world, contextual approach to likelihood of confusion—one that aligns closely with how dupes actually circulate in low‑attention environments shaped by impulse purchases and algorithmic discovery. Courts are beginning to account for these conditions at early stages of litigation.
In AM General v. Activision Blizzard, Inc., 450 F. Supp. 3d 467 (S.D.N.Y. 2020), the court assessed consumer perception as it actually occurs, assessing how players encounter the challenged use during gameplay rather than at the point of purchase, and focusing on whether that experience gives rise to confusion as to sponsorship. Network Automation, Inc. v. Advanced Sys. Concepts, Inc., 638 F.3d 1137 (9th Cir. 2011) remains a guidepost for evaluating consumer sophistication and marketplace conditions in online environments, while Glow Indus., Inc. v. Lopez, 252 F. Supp. 2d 962 (C.D. Cal. 2002) underscores the relevance of behavioral and marketplace evidence, even at early stages.
Platform-level evidence is increasingly treated as part of this consumer context. Courts are more receptive to using data from platforms like Amazon, TikTok Shop, Temu, and SHEIN to assess copying, confusion, or secondary meaning. Luxottica Grp. S.p.A. v. Light in the Box Ltd., No. 16-CV-05314, 2016 WL 6092636 (N.D. Ill. Oct. 19, 2016) recognized online‑marketplace infringement evidence as relevant to confusion and willfulness, whileTiffany (NJ) Inc. v. eBay Inc., 600 F.3d 93 (2d Cir. 2010)provides the foundational framework for using platform data for understanding platform-based infringement ecosystems. Early rulings in Yeti Coolers, LLC v. Rtic Coolers, LLC, No. 1:15-CV-00597-RP, 2016 WL 5956081 (W.D. Tex. Aug. 1, 2016) likewise acknowledged widespread online confusion and copying, even though the case settled before producing appellate authority.
As a result, plaintiffs should plead the purchasing environment itself. Courts are increasingly open to contextual evidence—such as takedown notices, platform removals, and algorithmic placement—where it illuminates real‑world consumer experience.
What Practitioners Need to Do Now: Strategic Considerations for Practitioners
With courts demanding specificity and real‑world context, dupe enforcement now requires coordinated trade‑dress, design‑patent, and platform strategies. Hybrid pleadings succeed only when each theory is distinct and factually grounded. Brands that invest in this integrated approach will lead in the evolving dupe litigation landscape.
Reprinted with permission from the 2/4/2026 edition of THE RECORDER © 2026 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com.