Summary: The article examines how the growing popularity of imitation products, commonly called “dupes,” is testing the boundaries of trade dress protection under United States trademark law. It focuses on two lawsuits filed in 2025: Mondelez International, Inc. v. Aldi Inc. and Lululemon Athletica Canada Inc. v. Costco Wholesale Corp. Both disputes concern the extent to which private-label retailers can reproduce the visual appearance of established brands without creating consumer confusion. The central legal issues involve distinctiveness, secondary meaning, functionality and likelihood of confusion under the Lanham Act. The Mondelez dispute concerns allegedly similar packaging used for Aldi’s private-label snack products, whereas the Lululemon litigation challenges similarities in apparel design and includes design-patent infringement allegations. These differences are legally significant because product packaging may qualify for protection based on inherent distinctiveness, while product design generally requires proof of acquired secondary meaning. The article discusses relevant Supreme Court precedents, including Two Pesos, Wal-Mart, TrafFix and Dewberry, together with the implications of social-media-driven imitation, post-sale confusion and private-label competition. The broader question is whether established brands can protect recognisable visual characteristics without obtaining exclusive rights over functional features or ordinary product-category conventions. The outcome of these disputes could influence packaging strategies, apparel design, intellectual property enforcement and risk management across the retail industry.
Introduction
Each discount grocery has a version of Oreo. The Lululemon Scuba hoodie is a product that can be found in every warehouse club. Such similarity was an accepted, even mundane, cost of doing business for brand owners throughout the decades. Now that tolerance is coming to an end. Both federal lawsuits from the summer of 2025, still in discovery as of mid-2026, are the latest battling of private-label retailers over how much they can borrow from a national brand’s appearance without entering into the realm of permissible imitation, and how much they can lend themselves to it without being guilty of infringement, as the social-media “dupe” culture takes the concept of imitation to the next level.
I. The Doctrinal Terrain: Trade Dress Under the Lanham Act
Trade dress is not a word mark or a logo, it protects the overall appearance and image of a product through the packaging, shape, color scheme, and the look and feel of the product as a whole, from being copied in a way that misleads consumers as to the source. A plaintiff must prove the dress is distinctive, either in origin or by acquired secondary meaning, it is not functional, and the defendant’s use will create a likelihood of confusion. Consumer association is not always required: packaging can be distinctive enough to imply it. The first question involving product design is, however, never a question of its inherent distinguishability: a plaintiff must always establish the concept of secondary meaning, which means that the public perception of the design’s primary significance is in identifying the source of the design, not in its identifying the design itself. That’s the dividing line in the following two cases.
Even if a feature has become distinctive, it cannot be protected as trade dress if it is a necessary condition to its use, or if it would otherwise be an unfair competitive advantage. The doctrine keeps trade dress from becoming a backdoor, perpetual patent. Even if a dress is not functional, but merely distinctive, it is not infringed unless there’s a likelihood of confusion, which courts evaluate using a multi-factor test that includes strength of the mark, similarity of the goods and channels and actual confusion.
II. The Snack Aisle: Mondelez International, Inc. v. Aldi Inc.
In the Northern District of Illinois, Mondelez filed a lawsuit in May 2025, claiming Aldi used the same color palettes, product photo camera angles, typography, and layouts to represent its Benton’s and Savoritz house brands as counterparts to its seven Mondelez lines: Oreo, Chips Ahoy!, Nutter Butter, Ritz, Wheat Thins, Premium and Nilla Wafers. The claim was not for accidental coincidence but “willful infringement and willful confusion with” packaging. Because the dispute concerns product packaging, Mondelez’s trade dress can be inherently distinctive under Two Pesos, Inc. v. Taco Cabana, Inc., without proof of secondary meaning.
Distinctiveness is clearly an issue, for it’s the one theory that Aldi will likely be relying on to defend itself, as its own slogan expressly acknowledges it’s a less expensive choice, Mondelez must persuade a jury that decades of marketing have made a blue bag with a tilted cookie and red starburst a source identifier, not generic shorthand for “sandwich cookie”. Both theories will likely be played out as more evidence is discovered and the case heads to trial, which is scheduled to close in October 2026.
III. The Locker Room: Lululemon Athletica Canada Inc. v. Costco Wholesale Corp.
Lululemon filed its lawsuit a month later in the Central District of California against Lululemon, Kirkland Signature, Danskin, Jockey, Spyder and Hi-Tec apparel that allegedly mimics its own SCUBA hoodie, DEFINE jacket and ABC pant lines. Unlike Mondelez, Lululemon claims rights to the design of its products; the cut, the seaming, the silhouette. Product design can never be inherently distinctive under Wal-Mart Stores, Inc. v. Samara Bros., Inc., so Lululemon bears a rigorous evidentiary burden to prove secondary meaning. It’s alleviating that burden by adding two design patents for ornamental features of Scuba hoodies along with trade dress and trademark infringement.
The significance of the design-patent claims is that they completely avoid the confusion requirement; infringement does not require proof of confusion in the marketplace, only that an ordinary observer would mistake accused design for the claimed design. That is a way for Lululemon to safeguard its intellectual property claims in the event that discount-minded Costco shoppers are not deceived by Costco’s lower-priced private-label versions. It’s a functional argument, Costco says, because the placement of seams and stretch panels Lululemon dubs “ornamental” are more functional, which enhances fit and range of motion, and are the kinds of features TrafFix doesn’t view as protection.
The evidentiary challenges Lululemon has against Costco have been compared to those presented to the Second Circuit in Tiffany & Co.’s unsuccessful trade dress claim against Costco’s diamond rings for the same reason. Lululemon’s complaint in advance points to this, as it highlights that Costco’s Kirkland line is also being made by the same manufacturers as the name-brand products, and thus signals to consumers that they are likely coming from the same origin.
IV. Where the Doctrine Is Heading
Both cases were predicated on the same unresolved dynamic of the law of trade-dress: that it is intended to stop source confusion, not to punish convergence in product categories. Cookies, athletic wear; categories where category conventions or competitive product signaling are to be expected. These “category conventions” are not “category signals,” but courts have long permitted a private-label competitor to “signal the same kind of product,” without signaling “the same company.” That allowance is complicated further by dupe culture: confusion isn’t just at the point of sale, both complaints highlight the confusion that happens after the sale and the confusion that gets spread around on social media, where a side-by-side can be created to make the resemblance and price gap the whole point.
The second thread is a remedial thread. In Dewberry Group, Inc. v. Dewberry Engineers Inc. (2025), the Supreme Court addressed the disgorgement of profits under the Lanham Act (15 U.S.C. § 1117(a)) and ruled that a plaintiff cannot force a defendant to disgorge the profits of its non-party corporate affiliates unless the plaintiff formally pierces the corporate veil. That limits the upside of winning the case for Mondelez and Lululemon, and could encourage future plaintiffs to file veil piercing arguments sooner. For corporate groups, the ruling dictates how liability and financial holdings should be kept separate.
Lastly, both cases will be instructive to whether juries accept “we told you it was cheaper” as a defense to confusion, or whether the deliberate attempt to come up with a similar name is itself evidence of the defendant’s intent to benefit from another’s goodwill. If either jury adopts that theory, then private-label design teams will have to leave some daylight between their designs and the brands that they undercut.
V. Conclusion
There is no need for the plaintiffs to show any proof of counterfeiting because no one has trouble knowing whose logo is on the label. The question that both have to answer is a tougher one, “Can a look be a brand without an actual brand name?” With dupe culture forcing retailers to engage in a game of who can most closely match, rather than who can match at a lower cost, trade dress law is designed to address the confusion of the shelves and is being demanded to act in response to intentional, publicized and commercially logical imitation. The decision these two districts make on how to handle these cases will have an influence not only on Aldi’s and Costco’s design teams, but on the private-label approach of all retailers who are watching from the sidelines.
References
- 15 U.S.C. § 1125(a) (Creating a federal cause of action for false designation of origin, encompassing unregistered trade dress).
- Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763 (1992) (Holding that inherently distinctive trade dress is protectable under § 43(a) without proof of secondary meaning).
- Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205 (2000) (Holding that product-design trade dress, unlike packaging, can never be inherently distinctive and always requires proof of secondary meaning).
- TrafFix Devices, Inc. v. Marketing Displays, Inc., 532 U.S. 23 (2001) (Holding that a product feature is functional, and therefore ineligible for trade dress protection, if it is essential to the use or purpose of the article or affects its cost or quality).
- Qualitex Co. v. Jacobson Products Co., 514 U.S. 159 (1995) (Articulating the functionality doctrine as a check against trademark law encroaching on the domain of patent protection).
- AMF Inc. v. Sleekcraft Boats, 599 F.2d 341 (9th Cir. 1979) (Setting out the multi-factor likelihood-of-confusion test applied throughout the Ninth Circuit).
- Mondelez International, Inc. v. Aldi Inc. Docket (N.D. Ill., Case No. 1:25-cv-05905) (Tracking the complaint and legal filings regarding Benton’s and Savoritz packaging configurations).
- Lululemon Athletica Canada Inc. v. Costco Wholesale Corp. Docket (C.D. Cal., Case No. 2:25-cv-05864) (Asserting trade dress infringement of apparel lines alongside U.S. Design Patent Nos. D989,442 and D1,035,219).
- Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665 (Fed. Cir. 2008) (Adopting the ordinary-observer test as the sole test for design-patent infringement).
- Tiffany & Co. v. Costco Wholesale Corp., 971 F.3d 74 (2d Cir. 2020) (Reversing a summary judgment of trade dress infringement, providing cautionary precedent on point-of-sale confusion defenses for club retailers).
- Dewberry Group, Inc. v. Dewberry Engineers Inc., 604 U.S. 321 (2025) (Holding that Lanham Act profit disgorgement under § 1117(a) cannot extend to non-party corporate affiliates without a successful claim to pierce the corporate veil).
