The following is a guest post by Hannah Sullivan, an intern with the Digital Resources Division of the Law Library of Congress. She is a current graduate student at the University of Rhode Island in the Master of Library and Information Studies (MLIS) program.
If you are anything like me, a big part of growing up revolved around makeup. With so many high-end makeup brands on the market, it gets increasingly difficult to keep up financially. Dupes, or “duplicates,” in the beauty world are considered a “cheaper alternative to higher-end products.” Store brand dupes, which have become a mainstream phenomenon, are starting to feel more high-end at a lower price point.
Although I am a makeup consumer, I never spent much time thinking about what goes on behind the scenes of the beauty industry (other than becoming more aware of ethical and cruelty-free options) until recently. Dupes can appear in many forms such as primers, eye shadow colors, lipsticks and so on. As dupes have become more prevalent, a number of questions about them started coming to mind. Are makeup dupes legal? Is there any validity behind accusations made by one makeup brand about another when it comes to “stealing” packaging, colors, and advertising campaigns? How are brands protecting their products?
Since it is usually a good idea to start with the basics – what is makeup? According to the Federal Food, Drug, and Cosmetic Act, section 201:
The term “cosmetic” means (1) articles intended to be rubbed, poured, sprinkled, or sprayed on, introduced into, or otherwise applied to the human body or any part thereof for cleansing, beautifying, promoting attractiveness, or altering the appearance, and (2) articles intended for use as a component of any such articles; except that such term shall not include soap.
For customer safety, makeup and cosmetics brands must provide a full list of ingredients and divulge any warnings on their labels. Comparing the ingredient lists of high-end makeup products with their store brand dupes can reveal significant differences among items, which presumably result in price differences. To prevent confusion across brands and their products, makeup companies can register a trademark.
This brings us to our second question – what is a trademark?
According to the U.S. Patent and Trademark Office (USPTO),
A trademark is a word, name, symbol, or device that is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others…. Trademark rights may be used to prevent others from using a confusingly similar mark, but not to prevent others from making the same goods or from selling the same goods or services under a clearly different mark. Trademarks allow makeup brands to have their own logos, packaging, and compact and applicator designs.
Companies with trademarked brands may litigate if they believe another brand is creating a product that is indistinguishable from theirs. However, courts have found dupes to be legally permissible under fair use principles because brands can sell similar products as long as there is no deliberate confusion to the customers purchasing them. For example, the U.S. Supreme Court in KP Permanent Makeup, Inc. v. Lasting Impression I, Inc. held that a plaintiff claiming infringement must show a likelihood of consumer confusion, while the defendant has no burden to negate the likelihood of confusion. In other words, the legal burden rests primarily with the trademark holder.
If you are interested in reading more about intellectual property law and makeup dupes, you may consider reviewing the following resources:
- Primeaux, S. (2018). Makeup dupes and fair use. American University Law Review, 67(3), 891-926.
- Pope, N. (2005). Still a ball of confusion: KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc. Chicago-Kent Journal of Intellectual Property, 4(2), 289-303.
- Stanford University Libraries, Copyright and Fair Use Center.