Dupe culture is reshaping consumer behavior in the marketplace of consumer products. But before we can fully appreciate the intellectual property landscape, it helps to be clear about what a dupe is — and equally important, what it is not.
Short for “duplicate,” a dupe is a more affordable product from a different source, inspired by the appearance or performance of a higher-priced offering. Selling a so-called dupe does not mean a consumer has been tricked, and calling a product a dupe of another does not make it an unlawful counterfeit or infringing product. While a dupe may deliver a similar experience and come at a fraction of the price, it typically carries its own branding and is readily distinguishable from the original. And that is precisely what makes them so significant for brand owners to understand and, where possible, to plan around.
Consumers are increasingly turning to dupes as value alternatives to popular established brand offerings, a trend supercharged by social media platforms where dupe discovery and recommendation has become its own content category. While this intensifying form of competition may be a point of frustration to premium brand owners facing it head on, even more frustrating may be learning the hard way that the intellectual property rights they believed they had are invalid and unprotectable.
Sophisticated brand owners understand the importance of layering various forms of intellectual property protection to maintain a competitive advantage. They understand the benefits and limitations of each form to advance their business goals, and when there is close collaboration between the legal department and business leaders, designers, and marketing and public relations professionals, there is an opportunity to create legal rights that may last forever, if handled properly.
Patent and copyright rights can help protect a competitive edge, but those rights eventually expire. Non-traditional trademark protection — in product shape, design, packaging, single colors, color schemes, and trade dress — may last forever, provided the claimed mark is distinctive, non-functional, continues to be used in commerce, and is cared for properly. The law provides significant benefits to brand owners who successfully register their non-traditional trademarks. Without a registration, enforcement requires the claimant to also prove a negative: that the claimed non-traditional mark is not functional. What some brand owners fail to appreciate is that functionality can be the death knell of non-traditional trademark protection. And because there is no statute of limitations preventing any interested party from challenging — at any time — even registered non-traditional trademarks on functionality grounds, it is, in every sense of the word, a ticking time bomb.
The stakes get especially high in the age of dupe culture. When a competitor or dupe seller successfully challenges a non-traditional mark on functionality grounds, the result may not merely be a lost lawsuit. The result might be a lost trademark right, full stop, opening the floodgates for others to freely copy what the brand owner spent years and resources developing. Functionality is an absolute bar to non-traditional trademark protection. There are no workarounds, no second chances, and no amount of acquired distinctiveness that would save a mark found to be functional. As the Supreme Court has reminded us over and over again, the right to copy functional product features is part of the public domain, and that freedom exists to encourage competition, not unlawfully hinder it.
So where might brand owners unwittingly pull the pin on this grenade? Surprisingly often, in their own advertising and brand storytelling. When the marketing team cedes control of ad copy and brand narrative to the engineering department, it has the potential to undermine or destroy non-traditional trademark rights entirely. Think of an energy drink bottle whose bumps are promoted as providing a “non-slip grip.” Or an unusual handle on a pet product as “ergonomic.” Or an automotive grille whose shape is described as assisting the flow of air into the engine. Or a product configuration whose helical fluting is said to deliver superior rigidity, improved cooling, and greater consistency. In each case, the brand owner’s own words — on a website, in an ad, in a press release, in a brand story — may become the evidence that kills the trademark claim.
The lesson is straightforward, even if the execution is not: if a brand wants to own a design feature as a trademark forever, treat it like one. That might mean training marketing and communications teams to understand the difference between celebrating what something looks like — legitimate trademark territory — versus celebrating what it does — functionality’s kill zone. It may also mean having trademark counsel in the room, or at least in the loop, before ad copy, website content, and brand storytelling go live.
In the context of dupe culture, the stakes of getting this wrong have never been higher. A successful functionality challenge hands the dupe seller exactly what they need: the legal right to copy. The ticking time bomb, once it goes off, cannot be defused. Whether a company is an established retailer looking to create a competitive store brand alternative, or a premium brand hoping to assert non-traditional trademark rights against a dupe, a sound, creative, and proactive legal strategy may help position the company for success. When it comes to non-traditional trademark protection, the time to act is long before the dupe shows up on the shelf.