Authored By: Sienna Louise Warren
Aston University
Abstract
This article contends that UK trademark and passing off law are doctrinally ill equipped to address the emergence of fashion ‘dupe’ culture, in which imitation is not incidental but deliberately calibrated to reproduce luxury brand identity while remaining just beyond the threshold of infringement. The current framework focuses on confusion and misrepresentation, protecting logos rather than aesthetic identity. This allows sophisticated reputational free riding that remains legally unaddressed. This article comparatively examines UK trademark law against US trade dress jurisprudence.
Introduction
In the age of social media, imitation is no longer a form of flattery. It is a meticulously engineered business strategy. [1]A fashion ‘dupe’ is a product engineered to replicate the aesthetic identity of luxury brands while remaining legally clear. Compared to blatant counterfeits, dupes rarely claim to be the originals. Rather, opting to capitalise on the distinctiveness of luxury designs. Thus, taking advantage of consumer recognition, without jumping the threshold of infringement.
This development forces UK intellectual property into unfamiliar territory. [2]The Trademarks Act 1994 and common law doctrine of passing off focus liability on the likelihood of consumer confusion and instances of misrepresentation. Normally these mechanisms guard logos and brand identifiers safely, but they lack when protecting design replications. Consequently, imitation prospers visible to the naked eye, such imitation further amplified by social media influencers, e-commerce platforms, and comparative marketing.
Looking at United States trade dress law reveals similar challenges. The United States offers legal tools such as stronger protection for nonfunctional design features and dilution claims, tools that the UK has not fully adopted. These differences highlight a key issue in modern fashion law of how to safeguard brand identity and exclusivity without unfairly limiting competition or stifling creativity.
This article argues that UK trademark and passing off law are structurally misaligned with the commercial logic of modern fashion dupe culture. The current framework prioritises confusion and misrepresentation over aesthetic identity. This allows dupe culture to operate freely, a gap highlighted by US trade dress principles.
Background and Conceptual Framework
[3]A trademark is any sign that identifies you as the owner of your goods or services to make it clear they belong to you. In this article there will be a general emphasis of [4]Section 10 of the Trademarks Act 1994 sets out the framework for infringement, and it is within this structure that the limitations of UK protection become apparent. The act is orientated towards preventing consumer deception. [5]S10(1), [6]S10(2) and [7]S10(3) of the Trademarks Act 1994 are relied on. S10(1) outlines identical signs used for identical goods. S10(2) is the core provision, establishing liability based on the likelihood of consumer confusion. S10(3) offers a broader route through protection of marks with a reputation, prohibiting use that takes unfair advantage of, or causes detriment to, distinctive character.
Throughout this article, confusion refers to the [8]key infringement test assessing whether the public might believe the goods or services originate from the same source. Furthermore, the common law doctrine of passing off safeguards the goodwill attached to goods or services. To succeed in passing off a claim, a claimant must demonstrate misrepresentation by the defendant, goodwill in the product or service, and damage as a result.
This article will also cover US trade dress protection under the [9]Lanham Act §43(a). Trade dress covers the overall image and visual appearance of a product, including its aesthetics. The Lanham Act §43(a) prohibits unfair competition, false advertising, and unregistered trademark infringement in the US.
Key concepts in this discussion include [10]‘aesthetic identity,’ the combination of visual elements that make a luxury product immediately recognisable.
Scholars such as [11]Scafidi and [12]Ginsburg discuss how insufficient protection allows free riding, yet overly broad protection could stifle design creativity. Fashion dupes precisely exploit this tension, reflecting the gap in UK law.
Legal Analysis
Dupe marketers strategically avoid S10(1) liability, and while S10(2) protects against consumer confusion, S10(3) provides limited protection for reputational marks. However, much evidence is necessary, and the courts are cautious to not reform trademark law in a way it reduces style. Logos and word marks are well protected under the law, but the design aesthetics are vulnerable to imitation. It is precisely within this aesthetic space that dupe culture operates, amplified by a consumer base that knowingly buys imitation, weakening confusion and limiting liability.
Passing off, like trademark law, protects against misrepresentation rather than aesthetic imitation. Dupes signal similarity rather than claim to be the brand, meaning consumer awareness often weakens the misrepresentation requirement. This reinforces how the law protects the origin of the product, and how dupes survive on imitation. The lower price of dupes and the similarities between products means the consumer will buy them, without misrepresentation and where rules around passing off become harder to satisfy.
Further, social media platforms actively promote dupes, inspiring consumers to purposefully seek dupes over the authentic product. The doctrine therefore reveals the same structural limitation as trademark law. It is equipped to control confusion, but not the strategic imitation that defines modern dupe culture.
S10(2) creates a gap that reflects a choice by the courts, likely to preserve brand competition and creativity, and to prevent monopolisation of creative design. However, the rise of modern dupe culture creates limitations. In return this reflects tensions between protecting brand distinctiveness and maintaining a competitive market. By contrast, US trade dress jurisprudence offers mechanisms to protect nonfunctional design features, spotlighting doctrinal tools the UK has yet to endeavour.
Unlike UK law, US trade dress provides protection for aesthetic features, covering the aspects of luxury products often exploited by dupes. The core statute in the US is called the Lanham Act §43(a). To directly compare both UK and US trademark laws, the UK strictly protects logos, commercial origin, and deception. Whereas the US can protect the look, shape, and visual identity of the product, not just the logos. However, both laws come with limitations. US law still requires non functionality and distinctiveness, meaning functional elements like performance of the product, cannot be protected even if it is distinctive. Conveying how the US approach still limits overreach, balancing protection with free competition, but it expands protection beyond logos unlike UK law. Furthermore, the distinctiveness necessity in US law means the product must be identified as originating from a particular source. Courts distinguish inherent distinctiveness against acquired distinctiveness through secondary meaning. Therefore, even in the US, dupe brands can still operate if they successfully mimic a style that has not gotten a secondary meaning. Thus, US protection is broader but limited, highlighting how UK law focuses on confusion and misrepresentation, leaving a gap for dupes to work.
Case Law Discussion
Case law provides a practical lens through which the limits of trademark protection can be examined, especially where imitation targets the aesthetic identity of luxury products rather than their explicit branding.
The first case of interest is [13]L’Oreal SA v Bellure NV. In this case Bellure sold cheap perfumes designed to imitate luxury fragrances and they used comparison lists that linked their perfumes to L’Oreal products. The courts discussed whether imitation that evokes a luxury brand without confusing consumers can still infringe trademark law. The courts ruled that infringement may occur if a company takes unfair advantage of the reputation of a well known trademark. Comparing this case to this article’s thesis, it confirms how the courts recognise imitation strategies; however, protection still focuses on trademark reputation and not product aesthetics.
A theme across this essay is S10(2). A case that conveys this is [14]Interflora v Marks & Spencer Plc. In this case, Interflora is a flower delivery network under the trademark ‘Interflora.’ Marks & Spencer bought the keyword ‘Interflora’ so that its adverts appeared when consumers searched for the Interflora brand. Interflora argued that these actions formed trademark infringement. This is because it allegedly misled consumers into believing the services originated from or were connected to Interflora. The courts emphasised the question of whether the advertisement enabled the average consumer to find the commercial origin of the goods. If the advertisement makes it sufficiently clear that the goods originate from a different business, then trademark infringement is not satisfied. This reasoning shows how UK trademark law stays centred on consumer confusion, allowing imitation to run within legal boundaries where consumers are aware that the product does not originate from the luxury brand.
While the Interflora decision reinforces the confusion based structure of UK trademark law, US courts prove a greater willingness to protect the aesthetic identity of products. A case that illustrates this well is [15]Christian Louboutin SA v Yves Saint Laurent America Holding Inc. Louboutin claimed trademark protection over its red sole shoe design, YSL sold monochrome shoes including red soles. The legal issue at hand was whether a design element of a product could function as a trademark.
The ruling said the red sole is a protectable trademark and that a design element can be a functioning trademark. This shows how US courts can extend to protect aesthetic features, unlike UK trademark law which does not cover design identity.
Critical Analysis and Findings
UK trademark and passing off law focuses on consumer confusion and misrepresentation. But, from analysing relevant statutes and case law, it has shown a significant gap in the law as it does not extend far enough to cover a products aesthetic identity from being imitated. This is where fashion dupes can deliberately exploit the luxury brands without risking liability.
L’Oreal SA v Bellure NV specifically represent this gap as when Bellure imitated L’Oreal, the courts could not protect the products aesthetics. As well as in Interflora v Marks & Spencer as this showed how protection depends on whether the consumer is misled about the products origin, confirming how aesthetic imitation without confusion is safe. When comparing UK and US cases there was a major contrast, due to US laws serving broader protection.
Judicial trends suggest a cautious approach in the UK as the courts are hesitant to transform trademark law into a general right over style, motivated by competition policy considerations and risk of stifling creativity. However, the increasing rise of fashion dupes reveals tension between brand distinctiveness and supporting a competitive market. Scafidi and Ginsburg emphasise how under protection leads to dupes free riding, but over protection risks creative stagnation. This tension shows the need for new legal mechanisms that covers aesthetic identity without impeding competition.
UK law could therefore receive help from a doctrinal expansion that recognises the ‘look and feel’ or other aesthetic identifiers as protectable if they meet distinctiveness and functionality thresholds. By adopting such an approach would address the increasing theme of free riding and more accurately align with commercial practices.
Comparative analysis with US law suggests that incremental doctrinal change may be the rightest route, as this keeps the competitive balance whilst providing recourse against strategic imitation.
Conclusion
This article has shown how UK trademark and passing off laws, specifically consumer confusion and misrepresentation, is ill equipped to regulate fashion dupe culture. This article has shown that while logos and clear brand identifiers receive abundant protection, the aesthetic identity of luxury goods stays unprotected. Dupe products thrive in exploiting this gap, while receiving help from the distinctiveness of luxury products.
However, US trade dress contrasts UK law by extending their protections to nonfunctional design elements. Cases such as Christian Louboutin v YSL illustrate this wider protection over luxury goods and services. When comparing the cases it confirmed this gap.
These findings reflect a defining gap in the law, that while courts can support a careful balance between competition and protection, current doctrines leave luxury brands vulnerable to strategic imitation. To address this, I believe the UK could endeavour into selective trade dress like principles. This would extend the protection of luxury brands while preserving market competition and align with commercial realities of fashion markets.
Bibliography:
Table of Cases
Christian Louboutin SA v Yves Saint Laurent America Holding Inc 696 F 3d 206 (2nd Cir 2012).
Interflora Inc v Marks & Spencer Plc [2015] EWHC 2231 (Ch).
L’Oreal SA v Bellure NV [2010] 7 WLUK 735.
Legislation
Lanham Act 1946 §43(a).
Trademarks Act 1994.
Journal Articles
Bauer J, ‘Federal Trade Commission: Jurisdiction – What Constitutes Unfair Competition in Commerce’ (1928) 41 Harvard Law Review 675.
Ginsburg JC, ‘The Concept of Authorship in Comparative Copyright Law’ (2003) 52 DePaul Law Review 1063.
Scafidi S, ‘Towards a Jurisprudence of Fashion’ (2019) 29 Fordham Intellectual Property, Media and Entertainment Law Journal 429.
Web Sources
CITMA, ‘What Is a Trade Mark?’ (Citma.org.uk, 2019) https://www.citma.org.uk/trade-marks-ip/what-is-a-trade-mark.html accessed 5 March 2026.
Harsanto B, ‘Aesthetics & Identity’ (Medium, 28 February 2024) https://medium.com/@brian.harsanto/aesthetics-identity-3d5097225be8 accessed 8 March 2026.
O’Toole C, ‘The Shape of UK Law on Copyright Infringement’ (CMS Law-Now, 23 March 2022) https://cms-lawnow.com/en/ealerts/2022/03/the-shape-of-uk-law-on-copyright-infringement accessed 8 March 2026.
Zerbo J, ‘Dupes’ (The Fashion Law, 2025) https://www.thefashionlaw.com/dupes/ accessed 7 March 2026.
[1] Zerbo J, ‘Dupes’ (Thefashionlaw.com2025) <https://www.thefashionlaw.com/dupes/> accessed 7 March 2026
[2] Trademarks Act 1994
[3] CITMA, ‘What Is a Trade Mark?’ (Citma.org.uk2019) <https://www.citma.org.uk/trade-marks-ip/what-is-a-trade-mark.html> accessed 5 March 2026
[4] Section 10 Trademarks Act 1994
[5] Section 10(1) Trademarks Act 1994
[6] Section 10(2) Trademarks Act 1994
[7] Section 10(3) Trademarks Act 1994
[8] O’Toole C, ‘The Shape of UK Law on Copyright Infringement’ (cms-lawnow.com23 March 2022) <https://cms-lawnow.com/en/ealerts/2022/03/the-shape-of-uk-law-on-copyright-infringement> accessed 8 March 2026
[9] Bauer J, ‘Federal Trade Commission. Jurisdiction. What Constitutes Unfair Competition in Commerce’ (1928) 41 Harvard Law Review 675
[10] Harsanto B, ‘Aesthetics & Identity’ (Medium28 February 2024) <https://medium.com/@brian.harsanto/aesthetics-identity-3d5097225be8>
[11] Susan Scafidi, Towards a Jurisprudence of Fashion (2019) 29 Fordham Intellectual Property, Media, and Entertainment Law Journal 429.
[12] Jane C. Ginsburg, The Concept of Authorship in Comparative Copyright Law, 52 DePaul Law Review 1063 (2003)
[13] L’Oreal SA v Bellure NV [2010] 7 WLUK 735
[14] Interflora v Marks & Spencer Plc [2015] EWHC 2231 (Ch)
[15] Christian Louboutin S.A. v Yves Saint Laurent America Holding, Inc. 696 F 3d 206 (2nd Cir 2012).
