Dupes vs. Fakes: Affordable Fashion or Legal Risk?

Our attorneys in Costa Rica, María Laura Torres and Mariana Nuñez, experts in Intellectual Property, share this article on the growing trend of "dupes” and its implications for intellectual property.

We live in a time marked by digital transformation, hyperconnectivity, and a strained global economy. In this context, consumers have shifted their priorities, giving rise to phenomena such as the lipstick effect: the tendency to cut back on large expenses while still indulging in small luxuries that provide emotional satisfaction. A $20 lip gloss may seem harmless, but it represents much more: an emotional connection to trends, a sense of belonging, and affordable gratification.

The term "dupe” comes from "duplicate” and refers to products that mimic the features of a more expensive item without being an exact copy. Brands like ELF and Steve Madden have perfected this model: they reproduce trends at a fraction of the cost without infringing intellectual property rights, by not using logos or registered elements, and by offering quality aligned with the price point.

Recent examples include:

• Sandals similar to Hermès Oran
• Ballerinas with a Chanel-like aesthetic
• Le Pliage-style handbags from Longchamp
• Replicated formulas similar to Charlotte Tilbury or Summer Fridays

A clear example is ELF Cosmetics and the rise of legal dupes. The recent billion-dollar acquisition of Rhode (Hailey Bieber’s brand) by ELF reveals a lot about how brands are responding to this consumer behavior. ELF, known for quickly replicating viral products in under 20 weeks, positions itself as a leader in the democratization of beauty. Rhode’s upcoming launch at Sephora in fall 2025 is a milestone for ELF, which previously focused its sales in retailers like Walmart and Target. The strategy is clear: reach a broader audience without losing the aspirational appeal that Rhode represents.

But this raises a key question:

How far can product replication go before it becomes a legal violation? Is a dupe inspiration or imitation?

From a legal perspective, as long as there is no infringement of trademarks, industrial designs, or patents, these practices are generally permitted. However, there is a fine line between what is legally acceptable and what may be ethically questionable.

Fakes: The real legal and social risk
Unlike dupes, fakes (counterfeit products) do constitute a direct infringement of intellectual property rights. They involve the unauthorized reproduction of trademarks, logos, packaging, and even trade names. These acts are punishable through civil, administrative, and criminal channels, both in Costa Rica and internationally.

What should brands and business owners know?

Affordable fashion is not the problem. The real danger lies in normalizing illegality and ignoring the consequences of consuming and selling counterfeits. The key is to educate consumers and, at the same time, for businesses to properly manage the protection and enforcement of their intangible assets.

The dupe phenomenon exists in a complex legal landscape involving different aspects of intellectual property:

• Industrial designs: protect the aesthetic shape of a product. Many go unregistered, leaving room for imitation.
• Trade dress: protects the "look and feel” of a product or packaging (e.g., Tiffany & Co.’s blue box or Coca-Cola’s contoured bottle). Even if a dupe avoids branding, it may infringe if it causes visual confusion.
• Patents and trade secrets: in cosmetics, patented or trade-secret formulas may prevent exact duplication; however, dupes often alter these to avoid legal barriers.
• Copyright: applies to original fashion designs, illustrations, or graphic patterns.
• Unfair competition: even without formal IP infringement, leveraging another’s reputation to drive sales can be legally challenged.

Protection can be based on:

• Registering intangible assets: including trademarks, trade names, designs, packaging, patents, or industrial secrets. Registration is only the first step.
• Enforcement mechanisms: Beyond registration, effective actions with customs and control authorities are vital to stop counterfeits. Asset monitoring is also crucial.
• International protection: If the brand strategy includes international markets, protection must extend beyond local borders.
• Counterfeit prevention: Companies must avoid producing counterfeits and ensure their own assets are protected to avoid becoming victims.
• Valuing IP as a strategic asset: Not just legally, but as part of the brand’s business model and reputation.
• Embracing trends creatively: Draw inspiration without compromising legality or innovation.

Beyond legal risk, there are serious economic and social impacts:

1. Legal Risks

• Penalties for consumers and sellers: In many countries, owning or selling fakes can lead to fines, confiscation, or even criminal charges.
• Legal and reputational damage: Companies or influencers promoting fakes may face lawsuits and brand damage.

2. Health and Safety Risks

• Counterfeit cosmetics and perfumes: Often made without sanitary control, may contain lead, arsenic, bacteria, or toxic substances.
• Fake medications: One of the most dangerous illicit markets; may lack active ingredients or have lethal doses.
• Electrical or textile products: Without quality standards, pose risks of accidents, allergies, or fires.

3. Economic Risks

• Loss of value for original brands: Innovation and quality investment are undermined.
• Unfair competition: Displaces legitimate sellers, harming formal economies and employment.

4. Social Risks

• Funding criminal networks: Counterfeiting is linked to drug trafficking, human trafficking, and money laundering.
• Cultural effect: Normalizes illegality and diminishes the perceived value of creativity and innovation.

The rise of dupes reflects a real need: affordable products that let consumers connect with trends without spending thousands. The challenge is drawing a clear line - inspiration is not counterfeiting.

Intellectual property should not be seen as a barrier to creativity, but as a strategic tool to protect and enhance it. Only then can strong brands grow in local and global markets without sacrificing legality, reputation, or innovation.

Please do not hesitate to contact us if you are interested in receiving further information or legal advice on this topic, we have a highly specialized legal team in Intellectual Property ready to help you protect your brand, products, and intangible assets both locally and internationally. If your company is facing challenges related to imitations, counterfeits, or seeks to strengthen its protection strategy, our attorneys are prepared to provide effective, up-to-date, and strategic legal counsel to support your business.



The information provided by ARIAS® is presented for informational purposes only. This information is not legal advice and is not intended to create, and does not constitute, an attorney-client relationship. Readers should not act upon this information without seeking advice from professional advisers.