Robby Belt, Associate Member 2025-2026
Intellectual Property and Computer Law Journal
I. INTRODUCTION
The phrase “run, don’t walk” has become a TikTok catchphrase for influencers, signaling that a new, budget-friendly “dupe” of a high-end product has hit the shelves.[1] While bargain hunting is nothing new, the modern “dupe culture” has transformed from a quiet consumer secret into a viral phenomenon.[2] At the forefront of this movement is Australian beauty giant MCoBeauty. MCoBeauty has built a successful, multi-billion-dollar empire by openly replicating the packaging and formulas of high-end beauty brands like Charlotte Tilbury, Sol de Janeiro, Glow Recipe, Tarte, and many more.[3]
While competing products, including lower-priced alternatives, are generally lawful, problems arise when a product’s branding creates a likelihood of consumer confusion or dilutes a famous mark. MCoBeauty’s strategy of mimicking the specific look and feel of competitors has triggered a wave of lawsuits alleging trade dress infringement and false advertising.[4] This blog explains why many dupes fall within the current boundaries of trademark law, then argues that MCoBeauty’s strategy pushes those limits to a breaking point. Ultimately, trademark and trade dress frameworks established by the Lanham Act should evolve to better safeguard the goodwill and brand identity that innovators cultivate, drawing a clearer line between legitimate market substitutes and business models designed to appropriate the value of established brands.
II. BACKGROUND
To understand MCoBeauty’s position, one must distinguish between a “dupe” and a counterfeit. A counterfeit is an illegal, unauthorized lookalike that attempts to pass itself off as the original by using the brand’s protected trademarks.[5] In contrast, a “dupe” (short for duplicate) is a product that mimics the functionality or aesthetic of a high-end item but does not use the protected word mark or logo.[6] “Dupes” occupy a legal gray area because U.S. intellectual property law offers limited protection for the overall design of fashion and beauty products, even when those products are meant to evoke a specific brand.[7]
While a brand name is easily protected, protecting the look and feel of a product falls under trade dress.[8] For trade dress to be protected under the Lanham Act, it must be nonfunctional and distinctive, either inherently or through acquired secondary meaning.[9] A design is nonfunctional if it is not essential to the product’s use or purpose and does not affect its cost or quality, ensuring trade dress law does not hinder competition by protecting features better suited for patent law.[10] Distinctiveness requires that the overall image function as a source identifier. While some packaging may be inherently distinctive, product design almost always requires proof of secondary meaning, which means consumers instantly associate that look with a specific source.[11]
While these doctrines establish the legal boundaries for protecting product design, companies operating within the “dupe” market often structure their business strategies to take advantage of the gaps within this framework. Consequently, companies like MCoBeauty can legally replicate a trending product’s formula and general look and feel as long as they avoid specific protected assets, such as a logo or a patented mechanism.[12] For example, MCoBeauty produced a dupe of popular makeup brand Charlotte Tilbury’s “Hollywood Flawless Filter” foundation.[13] To create its dupe, MCoBeauty created its “Flawless Glow Luminous Skin Filter” foundation with a similar packaging, logo, font, and formulation.[14] As MCoBeauty’s lawyer noted regarding their copy of Charlotte Tilbury, “Charlotte Tilbury does not own the rights to the word ‘flawless’…and there is no trademark infringement happening.”[15]
III. DISCUSSION
MCoBeauty’s Strategy
Before examining the legal doctrines that shape dupe litigation, it is helpful to understand how MCoBeauty’s business model operates in practice. MCoBeauty operates on a “luxe for less” philosophy, openly admitting that duping is a pillar of its marketing strategy.[16] However, the brand has faced accusations of crossing the line from inspiration into unlawful imitation.[17] In 2021, Tarte Cosmetics sued MCoBeauty, alleging that MCoBeauty’s dupe of Tarte Cosmetics’ “Shape Tape” concealer was so similar in terms of packaging that it constituted “misleading and deceptive conduct.”[18] MCoBeauty went on to settle and changed the packaging to be less similar.[19]
More recently, Sol de Janeiro filed a lawsuit alleging MCoBeauty not only copied its distinctive trade dress, which includes color-coded bottles, bold numbers, and circular logos, but also engaged in false advertising by promoting its products with the phrase “smells exactly like” the original.[20] Similarly, Glow Recipe (Amara Beauty, LLC) has sued, claiming MCoBeauty’s “Hydrate & Glow” serum mimics the “Watermelon Glow Dew Drops” bottle design to unfairly benefit from Glow Recipe’s reputation.[21]
Ultimately, these disputes turn on a central question in trademark law: whether consumers are likely to believe that a dupe product is associated with the original brand.
The “Wonderment Test”
The core of trademark infringement is proving a “likelihood of confusion.”[22] To determine this, courts and legal experts often look to the “Wonderment Test.”[23] As trademark expert Dr. Sarah Hook explains, this test asks whether a consumer walking down a shopping aisle would look at a product and “wonder” if it is associated with a brand they have prior knowledge of.[24] If the consumer pauses to wonder if the product is associated with a particular brand, the product is considered substantially similar enough to potentially confuse the public regarding its origin.[25]
However, MCoBeauty effectively uses this test as a shield rather than a sword. MCoBeauty argues that the “wonderment” factor is negated by the retail context.[26] Because MCoBeauty products are sold in mass-market retailers like Kroger rather than beauty counters and stores like Sephora and Ulta, where the brands MCoBeauty is duping are found, consumers arguably know they are purchasing a budget-friendly alternative.[27] This “sophisticated consumer” defense asserts that shoppers are not actually confused into thinking they are buying the high-end original, which effectively raises the bar for luxury brands to prove infringement.[28]
The Functionality Barrier
Proving consumer confusion is only one hurdle for brands seeking protection, as trade dress claims must also overcome another significant doctrinal limitation: the functionality doctrine. Under the Lanham Act, trade dress protection is limited to non-functional design features.[29] This rule exists to prevent trademark law from granting a permanent monopoly on useful inventions, which are supposed to be protected by utility and design patents for a limited time.[30] For a product’s design to be protected, the brand must prove that the specific design elements are not essential to the product’s use or purpose, and do not affect its cost or quality.[31] In fashion and beauty, this is a difficult bar to prove because clothing and bottles are considered “useful articles,” which means their overall shapes cannot be heavily protected.[32]
MCoBeauty heavily leverages this doctrine to its advantage, a strategy displayed in its ongoing legal battle with Sol de Janeiro.[33] In late 2025, Sol de Janeiro filed a lawsuit claiming that MCoBeauty intentionally copied the distinctive look and feel of its popular Cheirosa body mist line.[34] To establish its trade dress, Sol de Janeiro pointed to its elongated, translucent bottle, bright color-coded labels, opaque white cap featuring a rhombus design, and bold numbers centered in an oval outline as distinctive, non-functional, and solely associated with its brand.[35] MCoBeauty attacked this claim by arguing that the features Sol de Janeiro seeks to protect are generic and functional aesthetic choices common in the beauty industry.[36]
Once a brand like MCoBeauty makes the defense that the originator’s product features are functional, the originator carries the burden of proof to prove non-functionality, a challenge illustrated in Glow Recipe’s recent lawsuit against MCoBeauty over its popular “Watermelon Glow Niacinamide Dew Drops.”[37] Glow Recipe seeks to protect this product’s trade dress, which includes a pink, teardrop-shaped bottle with a pink cap covering most of the neck.[38] To survive the functionality barrier, Glow Recipe will have to show that its product’s teardrop shape does not make the serum easier to use, better preserved, or more efficient for the customer to hold, and that the teardrop shape does not affect the cost or quality of the product.[39] To prove that MCoBeauty used a similar shape and design as a calculated appropriation of brand identity rather than as a practical necessity, Glow Recipe will need to show there are numerous alternative designs that are feasible for competitors to use.[40]
These doctrinal hurdles reveal why many trade dress claims against dupe brands face an uphill battle, but they also raise a broader policy question about whether the law strikes the correct balance between protecting innovation and preserving competition.
Pro-Competition vs. Appropriation
While the aggressive imitation tactics of brands like MCoBeauty push the boundaries of intellectual property, it is important to acknowledge the pro-competition perspective. Trademark law intentionally allows a degree of copying because it is deemed essential for a healthy, competitive free market.[41] From an economic standpoint, dupes promote price competition by providing lower-cost alternatives, which prevents originator brands from maintaining monopolies and allows access to the beauty industry for consumers on a tight budget.[42] Furthermore, under the “piracy paradox” theory, this continuous cycle of imitation can actually encourage innovation by major brands to continually evolve their styles and designs to maintain their exclusive status.[43] Regulatory frameworks in the U.S., such as those from the Federal Trade Commission (FTC), even actively encourage comparative advertising, operating on the belief that referencing competitors helps consumers make informed decisions, fosters competition, and ultimately lowers prices.[44]
However, promoting price competition does not necessitate a complete appropriation of an innovator’s brand identity. MCoBeauty could easily manufacture and sell its lower-cost, generic formulas without fully appropriating the goodwill built by the brands it is duping. As Glow Recipe explicitly noted in its lawsuit against MCoBeauty, there are “numerous other designs available that are equally feasible and efficient” for competitors to use when packaging a serum.[45] Rather than getting creative with its own branding, MCoBeauty copies the exact color codes, bottle shapes, and fonts of brands like Sol de Janeiro and Glow Recipe.[46] By choosing to mimic the complete “look and feel” of these products, MCoBeauty crosses the line from merely offering a cheaper market alternative into intentionally benefiting from the goodwill, reputation, and aesthetic association built by the original brands. Ultimately, a true competitor can provide consumers with a budget-friendly option without blatantly copying the originator’s packaging and creative labor.
The Need for Legal Evolution
The current legal framework for trade dress struggles to address the “dupe” business model because it was historically designed to prevent consumer confusion, not necessarily to stop a competitor from openly acknowledging they are copying a product[47]. By selling its products in mass-market retailers instead of stores like Sephora and Ulta, MCoBeauty argues that consumers are fully aware they are purchasing a cheaper alternative.[48] This creates a legal loophole where blatant imitation is permissible so long as the imitator admits to the copying, effectively allowing them to free-ride on the research, development, and marketing costs of the originator.[49]
To alleviate this struggle, the Lanham Act needs to be interpreted or amended to better enforce anti-dilution protections.[50] Anti-dilution laws are intended to prevent the “whittling away” of a brand’s unique identity, but these laws may not be enough to protect innovation in the age of dupes. Even if consumers are not confused at the point of sale, the widespread proliferation of near-identical lookalikes dilutes the distinctiveness and exclusivity of the original brand, which erodes the value of its intellectual property.[51] For example, Sol de Janeiro contends that MCoBeauty’s use of identical color-coding, large numbering systems, and circular logos blurs the unique association consumers have with its Cheirosa line, which then renders their distinctive trade dress commonplace.[52] Without stronger anti-dilution standards, the law risks enabling a market where unique brand identifiers are genericized by competitors who contribute no original innovation.[53]
IV. CONCLUSION
MCoBeauty’s meteoric rise highlights a significant tension in modern commerce: consumers demand affordability, but brands require protection to justify innovation.[54] While dupes democratize access to beauty trends, MCoBeauty’s strategy of aggressive visual mimicry suggests they are not merely competing, but arguably free-riding on the creative labor and success of others.
Trademark law, specifically regarding trade dress and dilution, must evolve to close the gap between acceptable competition and blatant imitation that creates consumer confusion or dilutes brand equity. Current laws allow for functional copying, but MCoBeauty’s visual copying of Tarte, Sol de Janeiro, and Glow Recipe tests the limits of the “wonderment test” and trade dress functionality. The defense that sophisticated consumers know it is a dupe may no longer be sufficient when the marketing strategy is built on exploiting the original brand’s goodwill and innovation.
If courts and legislators do not draw a clearer line, the incentive for brands to invest in unique packaging and innovative formulas may diminish, which could lead to a market saturated with copies rather than new ideas. The outcome of these modern dupe cases could redefine the boundaries of brand identity in the algorithmic age, which could determine exactly how much of a brand’s soul can legally be duped.
[1] Grace Lamendola, Run, Don’t Walk: Dupe Culture, Trade Dress, and the Growing Fight Over Brand Identity, IPWATCHDOG (Jan. 12, 2026, 01:15 PM), https://ipwatchdog.com/2026/01/12/run-dont-walk-dupe-culture-trade-dress-growing-fight-brand-identity/.
[2] Erica L. Han et al., Imitation Game: Legal Considerations with Dupes-Based Business Models, ROPES & GRAY (June 17, 2025), https://www.ropesgray.com/en/insights/alerts/2025/06/imitation-game-legal-considerations-with-dupes-based-business-models.
[3] Kate Ainsworth & Emilia Terzon, After being sued twice, MCoBeauty has become a multi-million-dollar empire built on beauty dupes, ABC Nᴇᴡꜱ (July 1, 2024), https://www.abc.net.au/news/2024-07-02/mcobeauty-charlotte-tilbury-beauty-dupes-trademarks-lawsuits/104019774.
[4] Emma L. Sammons, Dupe Alert? Inside the Sol de Janeiro v. MCoBeauty Body Mist Lawsuit, BFV (Feb. 2, 2026), https://www.bfvlaw.com/dupe-alert-inside-the-sol-de-janeiro-v-mcobeauty-body-mist-lawsuit/.
[5] LeKeisha Suggs, Beyond the Lookalike: How Dupes are Testing the Boundaries of IP Law, UɴɪᴛᴇᴅLᴇx (last visited Feb, 22, 2026), https://unitedlex.com/insights/beyond-the-lookalike-how-dupes-are-testing-the-boundaries-of-ip-law/.
[6] Suggs, supra note 5.
[7] Lamendola, supra note 1.
[8] Sammons, supra note 4.
[9] Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 776 (1992).
[10] Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159, 165 (1995).
[11] Wal-Mart Stores, Inc. v. Samara Bros., 529 U.S. 205, 216 (2000).
[12] Ainsworth & Terzon, supra note 3.
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] Id.
[18] Id.
[19] Id.
[20] Sol de Janeiro Expands Lawsuit, Accuses MCoBeauty of “Deliberate Dupes”, TFL (Dec. 1, 2025), https://www.thefashionlaw.com/sol-de-janeiro-expands-lawsuit-accuses-mcobeauty-of-deliberate-dupes/.
[21] Amara Beauty, LLC v. MCo Beauty Pty Ltd, No. 1:25-cv-04808, Compl. ¶ 15 (S.D.N.Y. June 6, 2025).
[22] Suggs, supra note 5.
[23] Ainsworth & Terzon, supra note 3.
[24] Id.
[25] Id.
[26] Id.
[27] MCo Beauty: The $1B Shady Business, BAREFACED (Mar. 17, 2025), https://barefaced.substack.com/p/mco-beauty-the-1b-shady-business.
[28] Id.
[29] Han, supra note 2.
[30] Id.
[31] Bao Tran, How To Qualify For Trade Dress Protection: Key Requirements Explained, PᴀᴛᴇɴᴛPC (Feb. 15, 2026), https://patentpc.com/blog/how-to-qualify-for-trade-dress-protection-key-requirements-explained.
[32] Alexis Theoharidis, The Devil Wears Dupes: Legal Implications of “Dupe Culture” in the Fashion Industry and How Trademark Law Should Adapt, 9 Bᴜꜱ. Eɴᴛʀᴇᴘʀᴇɴᴇᴜʀꜱʜɪᴘ & Tᴀx L. Rᴇᴠ. 213, 225 (2025).
[33] Sol de Janeiro Expands Lawsuit, Accuses MCoBeauty of “Deliberate Dupes”, supra note 17.
[34] Id.
[35] Id.
[36] Id.
[37] Tran, supra note 27.
[38] Amara Beauty, Compl. ¶¶ 29-30.
[39] Id. at ¶ 31.
[40] Id. at ¶¶ 37-38.
[41] Theoharidis, supra note 32, at 235.
[42] Theoharidis, supra note 32, at 236.
[43] Theoharidis, supra note 32, at 235.
[44] MCo Beauty: The $1B Shady Business, supra note 27.
[45] Amara Beauty, Compl. ¶ 31.
[46] MCo Beauty: The $1B Shady Business, supra note 27.
[47] Suggs, supra note 5.
[48] MCo Beauty: The $1B Shady Business, supra note 27.
[49] Suggs, supra note 5.
[50] Theoharidis, supra note 32, at 228-229.
[51] Theoharidis, supra note 32, at 229.
[52] Sammons, supra note 4.
[53] Theoharidis, supra note 32, at 229.
[54] Sammons, supra note 4.
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