In today’s hyper-saturated marketplace, standing out is everything.
You’ve perfected your product’s look—sleek, smart, maybe even sexy. But while you’re basking in the glow of well-earned design success, someone else is quietly taking notes. Enter: the dupe.
Dupes are the slightly shifty cousins of counterfeits. They don’t outright pretend to be your product—they just look suspiciously similar, wink at your brand identity, and undercut your price. They’re bold, shameless, and increasingly everywhere. And while counterfeits can usually be tackled with traditional trademark law, dupes are a little slipperier.
Just the other week, I watched a webinar that included a fantastic example involving the Yeezy Boost 350 sneakers by Adidas. Initially, Adidas was denied copyright protection for the shoe’s design because sneakers are considered “useful articles.” Apparently, if you can walk in it, you can’t copyright it—go figure. But Adidas pushed back, and the U.S. Copyright Office ultimately agreed that the Yeezys’ distinctive wave patterns and colour schemes were, in fact, original works of art that deserved copyright protection. Moral of the story? Sometimes the legal system does have style.
But before you start sculpting legal masterpieces out of your product line, a word of caution: IP law doesn’t travel well without a passport. Every country has its own rules, standards, and surprises. What gets the green light in the U.S. might hit a wall in Canada, and what seems obvious in North America might get completely dismissed in the EU. Case in point: Birkenstock recently lost a legal battle in the European Union, where the court found that the shape of its iconic sandal wasn’t distinctive enough to be registered as a trademark. And let’s not forget—Canada isn’t exactly generous either when it comes to copyright protection for useful articles. So while Adidas may walk away with a copyright win for Yeezys in the U.S., you can’t count on that same strategy working in other jurisdictions.
Moral of the story? Don’t let foreign court decisions dictate your local IP playbook. What works abroad might flop at home. Always build your IP strategy with local laws—and local counsel—in mind.
Now, back to the dupes. Because they don’t use your brand name or logo, they often sidestep traditional trademark protection entirely. That leaves a gaping hole in your IP armor—one they’re only too happy to exploit.
The solution? Go beyond basic. Two of the most underrated (and underused) weapons in your IP toolkit are industrial designs and non-traditional trademarks. Industrial designs protect the shape, configuration, pattern, or ornamentation of your product. They’re pretty
easy to obtain, and they cover you for up to 15 years in Canada. Perfect for catching dupes red-handed in their early days.
Non-traditional trademarks, meanwhile, cover things like 3D product shapes or packaging—the kind of visual branding consumers really latch onto. They take a little more effort (and a dash of acquired distinctiveness), but the good news is they can be renewed indefinitely. Together, these tools create a layered protection strategy that says: “Yes, I did think of everything.”
Speaking of bold moves, let’s talk about Lululemon. In a plot twist no one saw coming, they recently filed a U.S. trademark application for the term “LULULEMON DUPE.” That’s right—they’re trying to trademark the very phrase that influencers use to promote knockoffs of their own gear. It’s unclear whether this is a judo move to control the dupe narrative or just a flex to mess with SEO—but either way, it’s audacious. Whether the U.S. Trademark Office agrees that “dupe” is trademarkable remains to be seen. And since it’s an intent-to-use application, Lululemon will eventually have to show they’re actually using “LULULEMON DUPE” in commerce. I, for one, will be watching with popcorn.
And just to add another wrinkle to all this—did you know that “copyright infringement” isn’t actually defined in the Canadian Copyright Act? That’s right. The Act gives you the exclusive rights to do things like reproduce, publish, perform, or communicate your work to the public—but it doesn’t include a tidy definition of what counts as infringement. In practice, infringement generally falls into two categories:
· Direct (or primary) infringement, which is when someone does something only the copyright holder has the right to do—like copying or distributing your work—whether they realize it’s illegal or not.
· Indirect (or secondary) infringement, which kicks in when someone knows (or really should have known) that a work infringes copyright, and still sells, rents, imports, or otherwise profits off it.
And, of course, only a court can officially decide whether infringement has occurred. Until then, it’s a bit of a legal Schrödinger’s cat: infringing and not infringing, all at once. So while you’re crafting your copyright strategy—especially for the visual elements of your product—it’s worth remembering that Canada may protect your creative works, but it also loves a little ambiguity when it comes to enforcement.
So what can you do about dupes? For starters, don’t just register your IP—use it. Monitor online marketplaces, issue takedown notices, and don’t be afraid to send a cease-and-desist or two (some infringers just need a polite shove). In Canada, registered trademark holders can also take advantage of the CBSA’s border enforcement program to intercept
counterfeit or infringing goods before they enter the country. In more serious cases, a legal action in court can provide injunctive relief and even financial remedies, including damages or an accounting of profits.
Dupes may be flattery in disguise, but they’re also a threat to your margins, your brand, and your market position. A proactive IP strategy—anchored by industrial designs, non-traditional trademarks, and maybe even a copyright or two—will help keep your product safe and your competitors in their lane.
If you’re navigating any of these challenges—or just want to make sure your product isn’t the next big “dupe” trend—we’re here to help. Let’s talk strategy.
