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Copycat Cosmetics: The Beauty Industry and the Bounds of the American Intellectual Property System

By Marra M. Clay. Full Text.

The primary justification for intellectual property is simple: it exists to incentivize innovation. Creators, innovators, and inventors are motivated to create, innovate, and invent by the promise of exclusive rights to the fruits of their labor. The founding fathers believed these rights so important that they wrote them into the United States Constitution. Surprisingly, some industries thrive despite lacking intellectual property protection. These fields—dubbed intellectual property negative space—call into question the necessity of such rights.

The beauty industry is often forgotten by the world of legal scholarship, yet it exemplifies negative space and is an unexpected tool for analyzing intellectual property’s effectiveness. Luxury beauty leaders devote millions of dollars each season to develop and market new products. To stay afloat, these brands must satisfy consumers’ constant desire for contemporary trends. However, these companies’ lofty profits are often tainted by knockoff manufacturers that quickly replicate the luxury goods for a fraction of the cost. These replica products—called “beauty dupes”—are common in the skincare, haircare, and cosmetic industries. Dupes recreate the colors, smells, and consistencies of prestigious products but are sold at a lower cost. For instance, a dupe may replicate the exact same color as a department store’s $55 lipstick but sell it at a drugstore for only $3.99.

This Note uses dupes to demonstrate that the beauty industry should be added to the growing list of negative spaces. Due to substantive and practical limitations in patent and trademark law, luxury brands cannot exclude dupes from the market. Nevertheless, the industry thrives. This Note then uses the beauty industry and other previously studied negative space fields such as fashion design, stand-up comedy, football, and tattoo art to discuss negative space’s broader implications. Congress need not “fill in” the negative space with additional intellectual property protections because negative space industries manage to achieve all of an intellectual property system’s goals without its administrative burdens.