court finds "dupe" label probative of intent to confuse and likely confusion

Sol De Janeiro USA, INC. v. MCoBeauty Pty Ltd, 2026 WL 2937438, No. 24-cv-8862 (ER) (S.D.N.Y. Sept. 30, 2026)

Sol sued MCo, its competitor in the market for cosmetics, for false advertising, trade dress infringement, and unfair competition by copying Sol de Janeiro’s fragrance mist products, in violation of the Lanham Act and New York General Business Law. The court found trade dress claims insufficiently pled but trademark infringement (always the exception these days) was plausible because MCo used Sol’s marks as tags.                           

Sol’s mists are sold with an

elongated, opaque, cylindrical white cap [that] has stylized wording in the same white color embossed on the cap; the cap includes a diamond or rhombus shape with letters or words inside the shape; the geometric shape outline on the elongated, translucent bottle (below the cap) … stretches from one side of the bottle to the other when viewed from the front; inside the oval on the elongated bottle at the top of the oval are the stylized words “Sol de Janeiro” or “Brazilian Crush” in white font; inside the oval on the elongated bottle below the text and approximately in the center of the oval are numbers in script font in larger font size than the words above it and below it; the smaller text below the numbers is also in white font and contains a description of the fragrance profile; no writing, font, or graphic elements appear on the bottle underneath or otherwise outside of the label; and a different colored translucent bottle is used for each of the nine fragrances.

Sol fragrances

Sol alleged that the bottles’ design is synonymous with Sol de Janeiro and that it has made substantial investments in advertising and promoting its products in the U.S., selling over 100 million units of beauty and cosmetic products, including the Mists. It also alleged that it had won multiple awards, was Sephora’s 2023 biggest seller in body care, and had a high number of U.S. social media followers.

MCo Mists are packaged in distinctly colored bottles with prominently-displayed numbers in white script font within thin elongated geometric designs, and elongated caps. In its own words, it makes “affordable alternatives to luxury products.” When a consumer types the words “Sol” and “Sol de Janeiro” into a search bar, its website produces results for its products, including MCo Mists. In ads and reviews, MCo, influencers, ambassadors, and reviewers compare its Mists to Sol’s, describing how the packaging and scents are similar. Online posts and comments identify its products as “dupes” of Sol’s. One influencer posted that MCo’s mist “smell[s] exactly” like the Sol Mist and that it would “will last most if not all day long” and “hold[s] better than” the Sol Mist. She stated that Sol’s Mist “has scents of black amber plum and vanilla woods” and the MCo Mist “has scents of black plum and vanilla.” Another influencer described the Mists, stating that they had similar scent notes, and that the MCo Mists’ scents “last all day.” MCo liked the post and commented “Love it!” with a heart-eyes smiley emoji.

MCo fragrances

Product reviews on MCo’s website “include comments that suggest that customers are aware that the MCoBeauty Mists are meant to be duplicates or copies of Sol de Janeiro Mists and smell the same.” Some comments state that MCo’s “packaging [is] very similar to the real one” but that their “[s]cent is a little off and watered down.” Another says that the MCo Mists “smell[ ] exactly like” Sol’s. MCo’s review team monitors the reviews but allows reviews mentioning Sol to remain on the website. (The horror!)

comparison

Sol argued that the comparisons were false and misleading about the smell/lasting all day and about the relationship between the parties. It further alleged that the products weren’t produced with the same materials, didn’t present the exact same fragrances, and didn’t dissipate at the same rate.

The court found that the smell/duration claims were non-false statements of opinion.  “[E]ven a master perfumer’s experiences of the scent profiles of different products cannot be objectively verified.”

However, the court puzzlingly found differently for the use of keywords (Sol’s product names): they weren’t puffery because they weren’t subjective. Hunh? In context, they are comparisons, and the court just held that those comparisons weren’t falsifiable. But the court accepted the allegation that MCo “intentionally attempts to confuse consumers by using” the keywords on its website to indicate that MCo sells Sol products or has a relationship with Sol. [Sighs in Amazon v. MTM.]

The court distinguished between “search advertising” and keyword use on a party’s own website; Second Circuit precedent didn’t support the claim that “customers who already navigated to MCoBeauty’s website will not be confused that MCoBeauty’s products are not Sol de Janeiro’s.” And it was also plausible that the use of Sol’s keywords would likely impact consumer decisions. [Yeah, as comparisons. The things courts find plausible with trademarks that they’d never find plausible with respect to non-trademark false advertising never cease to amaze me.]

The trade dress claims also failed. The court noted MCo’s argument that “the text of the reviews Sol de Janeiro uses to support its claims demonstrates that consumers are not confused and in fact understand that MCoBeauty Mists are ‘dupes’ or ‘lower-cost alternatives,’” which you’d think would also be relevant to the keyword claims.

The court found that Sol sufficiently articulated its “look” and that MCo uses its trade dress, including “prominently-displayed numbers in a nearly identical white script font encased in thin elongated geometric designs, color schemes, elongated caps with script on the caps, fragrances, and ingredients.” And it pled secondary meaning, including because of MCo’s copying, as well as confusion. But it didn’t sufficiently plead nonfunctionality. “[I]t is unclear how the elements convey the elegance and identity of the brand and are not designed for functional reasons like, for example, enabling the user to see the liquid inside.”

As for confusion, the court accepted Sol’s argument that, because dupes are comparable in aesthetic and used the same scent profiles, “consumers may well attribute MCoBeauty’s products to Sol de Janeiro.” Even without anecdotal evidence or survey evidence of confusion, confusion was still plausible because of MCo’s intentional copying: “[E]vidence of intentional copying gives rise to a presumption of actual confusion.” [This conclusion is, of course, ridiculous as to trade dress bearing clear word marks, especially trade dress that could well be functional.] But the court found that MCo’s self-description as “a company engaged in the sales of affordable alternatives to luxury products” weighed in favor of Sol because MCo “expressly capitalizes on Sol de Janeiro’s reputation to gain customers itself.”