When the Dupe Is the Point: What Lululemon v. Costco Means for Product-Based Brands
When a $118 hoodie and an $8 lookalike sit side-by-side on TikTok, you're watching the future of trade dress law unfold in real time.
Lululemon sued Costco earlier this year over what they're calling "dupes" of their signature pieces... the kind that make TikTok's "Costco finds" compilations go viral. But here's where it gets legally interesting: this isn't a typical knockoff case where consumers are tricked into buying something they believe is the real thing. When someone buys a Kirkland Signature hoodie for $8, they know exactly what they're getting. They're not confused. They're making a calculated choice to buy something on the cheap while benefiting from the visual impression of it being premium.
The traditional test for trade dress infringement asks whether there's a "likelihood of confusion"... whether a reasonable consumer might mistake one product for another. But dupe culture flips that assumption entirely. If the entire value proposition of the Costco product is that it looks like Lululemon without being Lululemon, isn't that still trading on someone else's design equity? The visual resemblance isn't incidental. It's the entire point.
Design as Property, Not Just Identity
Lululemon layered their protection strategically. They didn't just rely on trademark law, which protects brand identity and consumer confusion. They went after design patents... legal tools that protect the specific seam placements, pocket configurations, and fabric textures that define their aesthetic. Design patents don't require proving consumer confusion. They protect the look itself, independent of whether anyone mistakes one product for another.
The question the court will wrestle with is whether "everyone knows it's a dupe" is a defense, or whether the visual resemblance being the entire selling point makes it more problematic, not less. Does the absence of confusion neutralize the harm, or does it prove that the design itself has independent commercial value that's being exploited?
What This Means for Anyone Building a Product
If you're relying solely on your logo to protect your work, you're missing the bigger picture. The design itself... the silhouette, the proportion, the placement of details... may be the asset. Trademarks, trade dress, and design patents each protect different vulnerabilities, and in a market where dupes are celebrated rather than hidden, you need all three.
Trademarks protect your brand identity. Trade dress protects the overall look and feel that signals your brand to consumers. Design patents protect the specific ornamental features of your product. Together, they create a framework that makes it harder for someone to strip away the logo and still benefit from the design language you built.
The Threshold Between Inspiration and Appropriation
The line between being inspired by something and replicating it has always been nuanced. But when the replication is overt, celebrated, and marketed explicitly as a substitute for the original, that line starts to matter less than the principle underneath it: whether the visual language you developed has independent value that can be appropriated without consequence.
Dupe culture didn't invent this question, but it's forcing courts to answer it more directly. And for anyone building a product-based brand... whether you're designing streetwear, furniture, accessories, or consumer goods... the answer will define how much control you have over the thing you spent years refining.
The infrastructure behind your boldest moves includes knowing which legal tools protect which parts of your work. If the design is doing the heavy lifting, make sure it's protected accordingly.
If you're building a product-based brand and want to understand which protections actually serve your work, let's talk. Book a consultation to discuss how trademarks, trade dress, and design patents can work together to protect what you've built.