Author: Kshitika Ajgaonkar
College: Kirit P. Mehta School Of Law
LinkedIn Profile: https://acesse.one/7zzflem
1. Abstract
A two thousand rupee mascara promises the same lift as a five hundred rupee cult favourite. A vodka bottle mimics a rival’s dome silhouette. A chocolate button called “James Bond” sits comically close to a shelf of “Gems.”
Welcome to the dupe economy, a multi-billion-dollar marketplace built on the deliberate, mostly unapologetic imitation of another brand’s look, feel, or formula, while safely staying just outside the reach of trademark law. This article dissects how “dupe” culture has industrialised copying into a legitimate business model, why intellectual property law struggles to keep pace with it, and what six real courtroom battles, from Charlotte Tilbury’s fight with Australian juggernaut MCoBeauty, to e.l.f. Cosmetics’ courtroom win over Benefit, to a string of Indian precedents on trade dress and deceptive similarity reveal about the loopholes in the Trade Marks Act, 1999 and allied statutes. The central paradox is this: trademark law protects source-identifying symbols, not the idea of a product itself, and dupe manufacturers have become experts at replicating everything except the one thing the law actually protects.
A “dupe” short for duplicate is a product engineered to replicate a popular item’s function, aesthetic, or experience at a fraction of the price, without literally counterfeiting the brand name. Counterfeiting is illegal everywhere; duping occupies a deliberately engineered grey zone. The legal architecture that dupe-makers navigate rests on a few pillars. Trademark law protects distinctive words, logos, and increasingly “trade dress,” meaning the overall visual impression of a product’s packaging, shape, and colour scheme, provided that dress is distinctive and not merely functional. In India, the Trade Marks Act, 1999 defines a “mark” broadly under Section 2(1)(zb) to include a combination of colours, and Section 29 lays out what amounts to infringement of a registered mark, while Section 27 preserves the common-law remedy of a “passing off” action even for unregistered marks vital in India, where a huge share of small and mid-sized manufacturers never bother to register their trade dress at all.
The loophole dupe brands exploit is structural: trademark law protects symbols of origin, not the underlying idea, recipe, or “feel” of a product. A perfume’s scent, a serum’s viscosity, or a lipstick’s exact shade cannot be monopolised the way a logo can. So long as a competitor changes the name, tweaks the packaging enough to avoid “deceptive similarity,” and does not explicitly claim to be the original, courts have repeatedly found no actionable wrong even when the resemblance is the entire marketing pitch. Social media has supercharged this: TikTok’s “#dupe” tag has become a marketing channel unto itself, with influencers filming side-by-side comparisons that do the copying brand’s advertising for free, all while technically staying outside the ambit of false advertising law because no false claim of common origin is being made merely an implied comparison of quality.
Design law adds another layer of grey area. In India, the Designs Act, 2000 protects the ornamental or aesthetic features of an article’s shape, provided the design is registered and novel; an unregistered, functional shape gets no protection at all. Add to this the Copyright Act, 1957, which can protect the specific artistic expression of packaging artwork but not the generic idea of, say, a pastel gradient or gold cap and it becomes clear that a determined copyist has multiple legal seams to walk through.
Several doctrinal concepts recur across dupe litigation. Trade dress refers to the total visual image of a product, its packaging, colour palette, and shape that consumers associate with a single source. Deceptive similarity, the touchstone test under Indian trademark jurisprudence, asks whether an unwary consumer of average intelligence and imperfect recollection would likely be confused between two marks, a standard drawn from a long line of Supreme Court precedent. Passing off is the common-law tort that protects goodwill even absent a registered trademark, requiring proof of (a) goodwill, (b) misrepresentation, and (c) resulting damage to the so-called “classic trinity.” Likelihood of confusion, the American analogue, weighs factors like the strength of the senior mark, similarity of the goods, and evidence of actual confusion. Functionality doctrine holds that a feature essential to a product’s use or that affects its cost or quality cannot be protected as trade dress, since that would grant a perpetual monopoly better suited to patent law. Quia timet action is a pre-emptive lawsuit filed to prevent an anticipated, not-yet-completed infringement a tool proactive brand owners increasingly use once they learn a rival is about to launch a copycat line. Finally, puffery and comparative advertising intersect awkwardly with dupe marketing, since claiming a product is “just like X, but cheaper” treads a fine line between permissible comparison and actionable false association.
The scale of the dupe economy is no longer a fringe phenomenon it is a headline business strategy. MCoBeauty, the Australian company behind some of the most viral cosmetic dupes in recent years, has been projected to reach roughly A$250 million in annual sales, built substantially on replicating the “feel” of luxury products like Charlotte Tilbury’s Hollywood Flawless Filter while carefully avoiding its registered trademarks. Its own patent and trademark lawyer has openly described the company’s process: a formal internal audit of exactly which elements of a rival’s product are legally protected logos, specific phrase combinations, registered shapes so the dupe can be engineered to sit just outside that boundary while replicating everything else. That same company has, notably, been sued twice and settled both disputes confidentially after having pushed slightly too far evidence that the line dupe-makers walk is deliberately, and sometimes precariously, thin.
The mascara wars between e.l.f. Cosmetics and Benefit Cosmetics tell a similar story from the losing side of the plaintiff’s table. Benefit’s Roller Lash mascara, protected by a registered “Hook ‘N’ Roll” applicator trademark, had generated hundreds of millions of dollars in sales when e.l.f. launched a near-identical product called Lash ‘N Roll at a fraction of the price. e.l.f. openly admitted in litigation that it took inspiration from Benefit’s product. Yet a federal court still ruled in e.l.f.’s favour, reasoning that trademark law punishes an intent to deceive consumers about source, not merely an intent to copy a competitor’s product, a distinction that sits at the very heart of why dupe culture thrives entirely lawfully in most instances.
India offers its own instructive proof of both promotion and violation of fair trade practice. Courts here have shown genuine willingness to protect distinctive trade dress the Bombay High Court’s injunction against a deceptively similar vodka bottle shape is a strong example of judicial vindication of a brand’s nonverbal identity. Simultaneously, everyday markets are flooded with look-alike packaging for biscuits, spices, and confectionery in small town India, where under-resourced regional manufacturers frequently cannot afford the litigation costs to enforce even a clearcut passing off claim, leaving enforcement skewed heavily in favour of companies with deep pockets.
1. Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd. (2001) — The Supreme Court of India, dealing with two similarly named anti-malarial drugs, “Falcigo” and “Falcitab,” laid down the definitive multi-factor test for “deceptive similarity” in Indian law considering the nature of the marks, phonetic resemblance, nature of goods, class of purchasers, and mode of purchase a framework courts still apply to every dupe-adjacent dispute today, holding that pharmaceutical products deserve an especially strict standard given the public-health stakes of confusion.
2. Gorbatschow Wodka K.G. v. John Distilleries Limited (2011) — The Bombay High Court restrained an Indian distillery from selling vodka in a bottle whose bulbous, church-dome-inspired shape was deceptively similar to the plaintiff’s distinctive registered bottle design, affirming that trade dress — including a product’s three-dimensional shape — is fully protectable under Indian trademark law once it has acquired distinctiveness, even absent any similarity in the brand name itself.
3. Cadbury India Ltd. v. Neeraj Food Products (2022, Delhi High Court) — Cadbury successfully sued a small manufacturer selling button-shaped chocolates under the name “James Bond” in pillow-pack packaging deceptively similar to Cadbury’s “Gems,” with the court finding both phonetic similarity between the names and visual similarity in packaging sufficient to constitute infringement and passing off, awarding the plaintiff over fifteen lakh rupees in damages and costs.
4. Benefit Cosmetics LLC v. e.l.f. Cosmetics, Inc. (N.D. Cal., 2024) — Benefit sued e.l.f. for trademark and trade dress infringement over its “Lash ‘N Roll” mascara, alleged to copy Benefit’s registered “Roller Lash” and “Hook ‘N’ Roll” marks. The court ruled for e.l.f., holding that although e.l.f. admittedly drew inspiration from Benefit’s product, the evidence did not establish a likelihood of consumer confusion as to source — illustrating that intentional imitation of a rival’s product features is not, by itself, unlawful under trademark doctrine.
5. Tarte Cosmetics and Chemcorp v. MCoBeauty (2021, settled) — Two separate lawsuits were filed against Australian dupe giant MCoBeauty — one by American brand Tarte over concealer packaging, another by Chemcorp over its “1000Hour” brand and packaging. Both matters were settled confidentially before trial, with MCoBeauty subsequently altering its own product designs, illustrating how even a company built on the dupe model must eventually respect the outer limits of protectable trade dress.
6. Colgate Palmolive Company v. Anchor Health and Beauty Care Pvt. Ltd. (2003, Delhi High Court) — In a dispute over the red-and-white colour scheme and container shape of toothpaste packaging, the court held that trade dress is “the soul of identification” of a product’s source, and that a conscious imitation of a rival’s colour combination and overall get-up, even without copying the brand name, could amount to actionable passing off if it was designed to confuse the consumer’s overall visual impression of the product.
The dupe economy survives and thrives precisely because trademark law was built to answer a narrower question than the one dupe culture poses. The law asks whether a consumer is likely to be confused about who made a product; it was never designed to ask whether a consumer’s aesthetic or functional experience has been faithfully, deliberately replicated. Cases like Cadila and Gorbatschow show Indian courts are willing to protect names, shapes, and colour schemes once they cross the threshold of distinctiveness and consumer confusion but the e.l.f. v. Benefit ruling is a reminder that even blatant, admitted inspiration is not illegal so long as the copyist changes just enough. For India specifically, three structural gaps deserve attention: the absence of a dedicated statutory “unfair competition” law comparable to those in parts of Europe, which currently forces plaintiffs to rely on the older and narrower common-law tort of passing off; the prohibitive cost of litigation that leaves small manufacturers without any real protection against copycats; and the near-total absence of enforcement against online marketplaces where dupe products are marketed with explicit “just like [brand]” comparisons that arguably cross from permissible comparison into actionable misrepresentation. Until legislators close these seams, dupe culture will remain what it already is: a business model perfected in the space the law forgot to protect.
Q1. Is making a “dupe” illegal in India? Not automatically. Copying the underlying idea, formula, or function of a product is generally legal. It becomes unlawful only when the dupe copies protected elements — a registered trademark, a distinctive trade dress, or copyrighted packaging artwork — in a way likely to deceive consumers about the product’s source.
Q2. What is the difference between a “dupe” and a “counterfeit”? A counterfeit uses the original brand’s actual name or logo to pass itself off as the genuine product — this is straightforwardly illegal everywhere. A dupe uses a different name and typically altered packaging while replicating the look, function, or formula — placing it in a much greyer legal zone.
Q3. Can a product’s shape or colour scheme be trademarked in India? Yes. Under Section 2(1)(zb) of the Trade Marks Act, 1999, a “mark” can include a combination of colours, and courts have recognised three-dimensional shapes and overall trade dress as protectable once they have acquired distinctiveness, as seen in the Gorbatschow Wodka and Colgate Palmolive rulings.
Q4. Why did e.l.f. win against Benefit despite admitting it copied the product? Because U.S. trademark law (and the underlying logic mirrored in Indian jurisprudence) punishes an intent to deceive consumers about the source of a product, not merely an intent to imitate a competitor’s product features. The court found insufficient evidence that consumers were actually confused about who made the mascara.
Q5. What remedies does Indian law offer a brand facing a dupe? A brand can sue for infringement under Section 29 of the Trade Marks Act if it holds a registered mark, or for passing off under Section 27 even without registration, seeking a permanent injunction, damages, and an account of profits, as Cadbury successfully did against Neeraj Food Products.
Q6. Does social media “dupe” marketing create legal risk? Potentially. While comparative advertising is generally permissible, an influencer or brand explicitly claiming a product is “the same as” a named competitor’s item can risk disparagement or false-association claims if the comparison misrepresents ingredients, quality, or origin — an evolving and largely untested area of Indian advertising law.
1. RNZ News — “After being sued twice, MCoBeauty has become a multi-million-dollar empire built on beauty dupes”:https://www.rnz.co.nz/news/world/521113/after-being-sued-twice-mcobeauty-has-become-a-multi-million-dollar-empire-built-on-beauty-dupes
2. RNZ News — “MCoBeauty follows a rigorous process when it dupes cosmetics”:https://www.rnz.co.nz/news/world/521334/mcobeauty-follows-a-rigorous-process-when-it-dupes-cosmetics-here-s-what-it-looks-like
3. Bloomberg — “MCo’s Dupes of Charlotte Tilbury and Sol de Janeiro Are a Big Beauty Business”:https://www.bloomberg.com/features/2025-beauty-dupes-mco-empire/
4. The Fashion Law — “Court Rules in Favor of e.l.f. ‘Dupe’ Mascara Product”:https://www.thefashionlaw.com/federal-court-rules-in-favor-of-elf-dupe-mascara-product/
5. Trademark Lawyer Magazine — “Battle of the beauty dupes: courts side with e.l.f. over Benefit”:https://trademarklawyermagazine.com/battle-of-the-beauty-dupes-courts-side-with-e-l-f-over-benefit/
6. Global Cosmetic Industry — “Dupe Culture Meets the Courtroom”: https://www.gcimagazine.com/brands-products/bath-body/article/22962737/dupe-culture-meets-the-courtroom
7. Indian Kanoon — Gorbatschow Wodka KG v. John Distilleries Limited, judgment text:https://indiankanoon.org/doc/792062/
8. SpicyIP — “Bombay HC on passing off & shape of Vodka bottle”: https://spicyip.com/2011/05/bombay-hc-on-passing-off-shape-of-vodka.html
9. Law.asia — “Cautionary tale for trademarks shaping your brands” (Gorbatschow case analysis):https://law.asia/trade-dress-protection-in-india/
10. Legal Service India — “Cadila Health Care Ltd v. Cadila Pharmaceuticals Ltd: Landmark Supreme Court Judgment”: https://www.legalserviceindia.com/Legal-Articles/cadila-health-care-ltd-v-cadila-pharmaceuticals-ltd-landmark-supreme-court-judgment-on-pharmaceutical-trademark-confusion-and-deceptive-similarity/
11. LawBhoomi — “Cadila Health Care Ltd vs Cadila Pharmaceuticals Ltd 2001”:https://lawbhoomi.com/cadila-health-care-vs-cadila-pharmaceuticals/
12. SCC Times — “Gems or James Bond; Delhi High Court directs compensation to Cadbury against trademark infringement by Neeraj Food Products”:https://www.scconline.com/blog/post/2022/07/28/gems-bond-or-james-bond-delhi-high-court-directs-compensation-to-cadbury-against-trademark-infringement-by-neeraj-food-products/
13. Bar and Bench — “Everyone’s childhood is associated with ‘Gems’: Delhi High Court grants ₹16 lakh damages to Cadbury”:https://www.barandbench.com/news/litigation/everyones-childhood-is-associated-with-gems-delhi-high-court-grants-16-lakh-damages-to-cadbury-for-trademark-infringement
