Trade mark trends in the fashion and beauty industry

Intellectual property rights (“IPRs”) are an important consideration for companies trading in the fashion and beauty sector as they rely heavily on trade marks, trade dress – packaging and marketing materials – and design rights relating to them.

Over the last year, there has been plenty of discourse around “dupe” products and the criteria by which an “inspired” product becomes a “dupe” product, and exactly at what point are they liable to give rise to a claim of trade mark infringement.

A “dupe” product is a product that closely mimics another, sometimes more expensive, product. The purpose of a dupe product is often to offer a more affordable alternative while replicating the key features of the original. This might include design, functionality or performance. They are created to resemble the original closely without being a counterfeit.

An “inspired” product, as the name suggests, takes inspiration from another product but incorporates original elements to distinguish itself. Such products may remind consumers of the original but have enough differences to be seen as a separate creation.

In this article, we look at two recent cases pertinent to the fashion and beauty sector and identify the common trends forming around dupes and infringement.

Iconix Luxembourg Holdings SARL v Dream Pairs Europe Inc

Iconix Luxembourg Holdings SARL (“Iconix”) is the owner of the sportswear brand Umbro and they have a registered trade mark for its double-diamond logo. Dream Pairs Europe Inc (“Dream Pairs”) is the owner of a footwear brand (by the same name) and were using and seeking to register a logo in connection with football boots, which Iconix considered highly similar to their Umbro logo.

This led to Iconix opposing Dream Pairs’ trade mark application for their logo and issuing infringement proceedings against Dream Pairs in the UK High Court. The court initially dismissed Iconix’s claims on the basis that although the Umbro brand enjoys substantial global reputation of their logo, ultimately there was perceived to be a very low degree of similarity between the marks and so no likelihood of confusion.

Iconix later successfully appealed this judgment on the basis that the High Court had failed to consider the likelihood of post-sale confusion. This essentially means that while the customer might not be confused between the two marks at the point of sale, that doesn’t prevent other consumers of the mark – for example those seeing the trainers being worn – from being confused between the respective marks.

Following this, the Court of Appeal held that the High Court Judge had failed to properly consider how the average consumer would view the mark, in connection with its goods. It ruled that the mark on footwear would be viewed from different angles which would lead to post-sale confusion as consumers could be misled into believing that the trainers were Umbro branded.

The function of a trade mark is to act as a badge of commercial origin, and where this creates any consumer confusion, the case for trade mark infringement should be upheld.

Benefit Cosmetics LLC v E.L.F. Cosmetics, Inc

Benefit Cosmetics LLC (“Benefit”) is the owner of the beauty brand Benefit and have a number of products on the market, including their “Roller Lash Mascara”. Elf Cosmetics, Inc (“Elf”) is the owner of the beauty brand Elf and have a mascara product on the market called “Lash n Roll” which Benefit considered highly similar to their product.

Following this, Benefit issued infringement proceedings against Elf in the courts of the Northern District of California. The court dismissed Benefit’s claims on the basis that although Elf’s product is “inspired by” Benefit’s product; the overall impression created is dissimilar enough that it is unlikely to cause confusion. This is an important factor to consider in relation to the implied definition of what a “dupe” product is in 2025.

In the judgement, the court examined which particular elements of the products were similar, including the trade marks and trade dress, and found that the elements that were considered “similar” were actually secondary elements when considering the overall impression created by Elf’s product.

As a result, these secondary elements were not dominant enough overall as branding elements to lead to findings of infringement in respect of Benefit’s product.

What is the common trend?

The common trend between these cases is the point at which a consumer can be confused between brands. The judgments in these cases have been more concerned by “consumer confusion” rather than the actual intent of the respective businesses to copy or “dupe” another product.

The decisions made in these cases have ultimately led back to the overall impression that the use of a mark on a product creates amongst wider consumers when in use on products in the public.

In conclusion, a business which designs, creates, manufacturers, or retails fashion and beauty products needs to be aware of this fine line between “dupe” products and “inspired” ones. It is important to consider the overall impression given to the consumer at all points of the product lifecycle, as this has now become a crucial factor in determining whether a product is infringing another or not.