Designer makeup brands are pricey, and the budget-conscious makeup enthusiasts among us might find it tempting to reach for the increasingly popular dupes sold by drugstore makeup brands. But we have all heard the saying, “If it feels like a steal, it probably is.” So, are popular makeup dupes really legal to buy?
Makeup duplicates, or “dupes,” produced by low-end makeup brands are legal to buy. This is because dupes are not exact copies of the designer product, and therefore are not a violation of the designer’s intellectual rights.
On the other hand, counterfeit makeup is produced in identical packaging. It fraudulently uses the original designer’s branding, which violates its trademark—making it illegal to purchase them knowingly. That said, there might be a few ethical concerns when it comes to buying makeup dupes, specifically.
Are Makeup Dupes Legal to Buy?
Makeup “dupes” are imitations of high-end designer makeup products produced by lower-cost, drugstore makeup brands.
It is totally legal to buy makeup dupes. This is because dupes are not in direct violation of intellectual property rights. As long as the dupe is different enough to be distinguished from the original designer product, it is not considered a copy and therefore escapes the legal reaches of trademark or copyright protections.
Dupes are meant to give off the same vibe as the “real thing” without the high-end price tag. They also tend to be a lower-quality product, meaning consumers sacrifice a certain amount of wear longevity and color purity when they buy dupes over the actual designer product. But for budget-conscious makeup connoisseurs, this is a trade-off they are willing to make.
The important thing is that dupes are still regulated by the FDA and are generally safe to use because they still come from reputable, albeit lower-end, brands that also produce makeup of their own.
As it stands, dupes are currently not considered illegal because they do not violate the intellectual property rights meant to protect artists and designers, but is this argument on solid ground? Let’s take a look.
There are actually four types of intellectual property rights:
- Patents: In the makeup industry, patents protect the formula of the physical makeup, as in what it’s made of.
- Trademarks: This applies to the makeup branding and includes packaging, logos, brand names, etc.
- Trade Secrets: In makeup, this most often applies to the specific combination of chemicals used to create a scented product.
- Copyright: This protects design aspects of a makeup product, such as the specific colors included in a pallet and how they are arranged.
When it comes to dupes, they are usually safe from allegations of patent, trademark, or trade secret violations because they use their own formulas and branding and often will exclude certain product characteristics that trade secrets might protect. So, it all comes down to copyright law.
Keep in mind copyright law applies to the visual markers that would identify a makeup product. More often than not, drugstore brands’ makeup dupes make it pretty obvious who they took their inspiration from. The colors included in a dupe pallet will very nearly match the colors of the original. They just might be arranged slightly differently, and that’s really all it takes to save the dupe from copyright infringement. This is known in legal terms as “fair use.”
When it comes to court cases involving copyright issues, the burden of proof falls on the designers, who have to prove that the dupe can easily be visually mistaken for their product. If they cannot prove this, the dupe will win the court case.
This was enabled by the Supreme Court’s decision in the KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc. court case, which stated that the defendant (in this case, the duper) is not obligated to dispel confusion about their product. Basically, this means that the duper cannot be held responsible if an ill-informed consumer mistakes the dupe for the “real thing.”
The legality of dupes is decided by changing the tone of lipstick by one shade or shifting the blue eyeshadow over two spaces in a pallet. Where it is not for those small changes, dupes would violate copyright law. It’s a fine legal line, to say the least, and many makeup designers are still upset about it.
Given the shaky legal ground of makeup dupes, many makeup devotees will boycott dupes to support their favorite designers and high-end brands. There is something to be said for “encouraging originality,” as one fashion blogger calls their followers to do by saving up to financially support their favorite makeup designers via product purchases.
Others have no problem with buying dupes. The supporters of dupes believe it occurs in the fashion industry all the time, from fast-fashion dupes of runway hits to dupes of popular high-end skincare products.
Even some makeup artists vocally support purchasing lower-cost dupes, stating that some high-end products might not be available to them either due to cost or even regional availability.
There is something Robin Hood-esque about makeup dupes, and the CEOs of cosmetic companies that regularly engage in duping know it. Adam Minto, the CEO of Makeup Revolution (MUR) (a brand that is well-known for its dupes), made this exact point in defense of his brand, saying, “makeup should not be elitist, shouldn’t be based on your ability or your willingness to pay more.”
Just to make sure we are being crystal clear, there is a difference between makeup dupes and makeup counterfeits.
- While dupes are inspired by designer products and are often near approximations of the original, they never claim to be the “real thing.”
- Counterfeits are bootlegged copies of the original product that actively claim to be the “real thing.”
Counterfeits directly violate the intellectual property rights of the original designer because they copped trademarked branding. This means they are not only illegal to produce, but they are also illegal to buy knowingly.
If consumers are aware that they are purchasing counterfeits, they could be prosecuted by the US Customs and Border Protection agency. However, because most makeup fakes are designed to look exactly like the real thing on the outside, most consumers can play dumb and escape legal consequences.
Counterfeits are produced illegally by unregulated cosmetic companies, usually operated outside the United States. They are not regulated by the FDA and often contain dangerous ingredients that can cause all kinds of nasty side effects, from eczema to eye infections.
One study tested a counterfeit Jacklyn Hill eyeshadow pallet and discovered that the fake contained elevated lead levels, exceeding the FDA upper limit of 10 parts per million. This same study found that counterfeit Mac Lipsticks also contained unsafe levels of lead.
Furthermore, according to the US Customs and Border Protection agency, purchasing counterfeit makeup can support other criminal activities such as money laundering, drug trafficking, and illegal gun sales. And if that wasn’t already enough of a moral conundrum, most counterfeit items manufactured aboard exacerbate unethical work conditions by promoting sweatshops, child labor, and even terrorism.
The moral of this story is, don’t buy counterfeit makeup. It’s both illegal and dangerous.
Are Makeup Dupes Ethical to Buy?
Hopefully, we have made it very clear that there are significant ethical problems associated with buying counterfeit makeup, but is it ethically okay to buy makeup dupes just because it’s legal?
That is a more complex question that has sparked debate in both the court of law and the court of opinion. But, it essentially boils down to how much economic credit we want to give the original makeup designers for their innovations.
It is totally legal to buy the drugstore dupe of your favorite eyeshadow pallet. In doing so, you’re only hurting the wallet of the designer who worked hard on the original, but let’s face it, their wallets are probably already bigger than most of ours.
There is obviously hot debate surrounding the ethics of dupes. With their legality hanging by a copyrighted thread, it could easily become a matter of the legal past. All it would take is one court decision to redefine the legal president of “fair use,” and dupes could find themselves in hotter legal waters.
Just watch out for the illegal, dangerous counterfeits, and you’ll be golden.