USA – ARIZONA Trends and Developments Contributed by: George Saad, PLATZ JURIS, PLLC
The Dupe Dilemma: When Flattery Becomes Infringement, and What Brand Owners Should Do About It When flattery files in federal court Imitation may be the sincerest form of flattery, but it is rarely the most profitable. Ask Mondelēz Interna- tional, whose trade dress complaint against Aldi, filed on 27 May 2025 in the Northern District of Illinois, reads like a forensic autopsy of snack-aisle déjà vu. Ask J.M. Smucker, which on 13 October 2025 sued Trader Joe’s in the Northern District of Ohio over a rival crustless peanut butter and jelly sandwich. Ask Lululemon, whose 27 June 2025 complaint against Costco in the Central District of California reads like a side-by-side gallery of athleticwear lookalikes sold under the Kirkland Signature label. Or ask Pacific Mar- ket International, which on 6 November 2025 sued Five Below in the Northern District of California over discount tumblers accused of duping the viral Stanley Quencher and IceFlow lines. These cases may differ in industry, geography, and doctrinal emphasis, but they share a single animating question: how close can a “dupe” come to the genuine article before it crosses from lawful competition into actionable infringement? For in-house counsel advis- ing brand owners, the answer is no longer academic. The dupe economy, once a fringe subculture of viral hashtags and influencer side-by-sides, has matured into a structural challenge to the economic foundation of premium brands, and the doctrinal architecture for responding is undergoing its most meaningful recali- bration in a generation. What is a dupe, legally speaking? A “dupe”, short for “duplicate”, is consumer short- hand for a product engineered to resemble a more expensive original at a fraction of the price, without carrying the original’s name or logo. Unlike the classic counterfeit, which forges a brand’s mark, the dupe is typically honest about what it is. It says, in effect, “this isn’t the real thing, but it looks close enough”. That honesty is both the dupe’s commercial strength and the brand owner’s litigation problem. The dupe tests every seam of the United States IP system. It is not quite a trade mark counterfeit,
because it disclaims the original’s mark. It is not quite a plain copy, because US law permits a great deal of lawful imitation of unprotected features. It sits, often deliberately, in the narrow space where trade dress, copyright, and design patent protection overlap, and where each regime, on its own, has recognised weak- nesses. Understanding why requires a tour of all three. The current docket: four cases worth watching Mondelēz v Aldi Mondelēz’s complaint alleges that Aldi’s Benton’s and Savoritz house brands copy the trade dress of seven iconic snack packages: Oreo, Chips Ahoy!, Nutter Butter, Nilla Wafers, Wheat Thins, Ritz, and Premium Saltines. The grievance is not the underlying cookie; it is the blue package with a tilted Oreo, the red-and- gold Ritz geometry, the peanut-shaped Nutter But- ter silhouette. According to the complaint, Aldi had previously agreed to discontinue or redesign flagged products, yet allegedly resumed the conduct across multiple SKUs. Mondelēz pleads wilful trade mark and trade dress infringement, unfair competition, unjust enrichment, and federal and state dilution, and seeks injunctive relief and treble damages. The case is a textbook packaging trade dress dis- pute. If litigated to judgment, it will test how robust the secondary meaning of legacy consumer brands truly is under modern survey methodology, and whether Aldi’s “Like Brands, Only Cheaper” tagline cuts against consumer confusion, by signalling the non-brand status openly, or reinforces Mondelēz’s dilution theory by demonstrating intentional trade-off. J . M . Smucker v Trader Joe ’ s Smucker alleges that Trader Joe’s Crustless Peanut Butter & Strawberry Jam Sandwiches copy the round shape, crimped edges, and blue packaging of the Uncrustables line, a brand Smucker says is on course to reach one billion dollars in annual sales. The com- plaint leans on federal trade mark registrations cover- ing the circular, sealed-edge sandwich configuration and the “bite-taken-out” image on the packaging. The vulnerability is immediately visible to any trade dress practitioner: functionality. A round sealed sand- wich is round and sealed because those features keep the filling in, the crust out, and the product stackable.
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