DUPE ECONOMY: TRADE DRESS VS AESTHETIC FUNCTIONALITY

The contemporary marketplace is increasingly defined by products that imitate the visual appearance of successful brands and goods without reproducing their trademarks. These products are commonly known as dupes. They do not purport to counterfeits, instead they replicate the look and feel of the established products while omitting logos or word marks. The rapid increase of such products across fashion, cosmetics, furniture, apparels and digital interfaces has brought a very new pressure upon the law of Intellectual Property Rights pertaining to trade as brand owners try to protect aesthetic uniqueness through trademark doctrines. The most important question that lies at the very core of the conflict is how far the law can be extended to protect a good's appearance without granting a monopoly over aesthetics that are required for competitors to stay effectively in the market. This question places dupe economy at the intersection of three forces i.e., the expansion of trade dress protection, the realities of competition in aesthetic markets and the limiting Doctrine of Aesthetic Functionality. The pressure is not just doctrinal but also structural, reflecting trademark law's struggle to conjoin its source identifying function with its mandate of preserving competition. This article advances the idea that the dupe economy could be utilised as a stress test that exposes the limits of trade dress protection and not as a loophole or aberration within intellectual property law. Aesthetic functionality appears as a critical doctrinal safety valve designed to prevent trademark law from breaking down into incessant design protection.