AdAge Speaks to Josh Gerben About Brands Taking Action Against Dupes

This year, multiple brands have filed trademark infringement lawsuits against “dupe” products.

Josh Gerben discussed this trend with AdAge. 

“All of a sudden, brands are waking up to this reality that they need to make sure people are not trading off the goodwill that they have cultivated,” said Josh Gerben, a founding partner of law firm Gerben Perrott. “It’s resulted in a lot of cases.”

But brands should use caution when deciding to fight a dupe with a lawsuit. Lawsuits are expensive and not everyone has a strong case. If an infringement case is lost, it could invite even more copycats. Brands should only pursue infringement lawsuits against products that are making a financial impact, or where “a lot is being taken,” said Gerben.

Take the recent case of Smucker’s v Trader Joes over crustless peanut butter and jelly sandwiches. In its complaint, Smucker’s argues that there is customer confusion between Uncrustables and the Trader Joe’s sandwich.

“When you get consumers thinking is this an Uncrustable or Trader Joe’s, and when the line gets blurred and the consumer doesn’t know, that’s when you have a really good case.” Gerben adds that Smucker’s provided several examples from social media, including one in which a user thought the Trader Joe’s sandwich was made by Smucker’s.

“Courts and juries find marketplace evidence the most persuasive,” Gerben said. “If people are posting on Instagram, that’s really good evidence that can be used in a trial.”

While there have been a good number of “dupe culture” infringement lawsuits filed already, Gerben believes that this is just the beginning.

“Sometimes when larger companies see other large companies finally standing up and filing lawsuits, you’ll see more,” said Gerben. “People will get emboldened seeing similar situations of their colleagues finally saying enough is enough with all this dupe stuff, we can’t be duped out of the market.”

Source: Pasquarelli, Adrianne. https://www.adage.com. “Behind the rise of dupe enforcement and how brands should respond”. 28 October 2025.