Dupe culture – understanding the legalities.

In the world of fashion, cosmetics, and consumer goods, ‘dupes’ have become increasingly popular. While cheaper alternatives to high end products is nothing new, the term ‘dupe’ has entered common parlance in recent years.

The popularity and perception of dupes has evolved with increasing cost of living pressures and a generational shift in consumption of goods and media normalised by Gen Z. Dupes carry a less negative connotation compared to counterfeits or knockoffs, yet defining what qualifies as a dupe remains open to interpretation.

What is a dupe?
A ‘dupe’ is a product that closely resembles another, more expensive, item in both appearance and functionality, but is available at a lower price. Australian cosmetics retailer MCo Beauty is a prime example, renowned for offering cosmetic alternatives that mimic luxury brands at a fraction of the cost. However, in dupe discourse that permeates basically every corner of the Internet, the term ‘dupe’ has expanded to include counterfeit goods, such as those available on China-based e-commerce website and app DHGate, affectionately known as ‘the Gate’ or ‘the little yellow app’.

While finding a good dupe can be satisfying for consumers looking to save money, it raises several legal considerations.

Intellectual property laws
One of the main legal issues around dupes is intellectual property. In Australia, intellectual property laws, such as trade marks and patents, protect brands from the unauthorised use of their brand names, logos, or product features. If a dupe too closely mimics a trade marked or patented product, it could potentially infringe these rights.

Trade mark infringement will occur when someone uses a brand’s name, logo, or other distinctive branding asset without permission. Using similar packaging or branding that confuses consumers could also be seen as passing off.

Patent infringement will occur when someone uses or sells a patented formula without permission from the inventor. Dupes are particularly prolific in the beauty industry, as there are very few patents due to a lack of innovation in the formulations necessary to qualify for patent protection.

Consumer laws
Consumer protection laws are also an important consideration.

The Australian Consumer Law mandates that products sold in Australia must not be misleading or deceptive. If the marketing of a dupe product creates a false impression that it is affiliated with, or endorsed by, the original brand, this could breach consumer laws.

Dancing around the law
Dupes aren’t necessarily illegal. They generally navigate legal boundaries very carefully, in many cases going very close to the line without actually crossing it.

A well-known example of this is MCo Beauty’s Flawless Glow, a popular dupe of Charlotte Tilbury’s coveted Flawless Filter.

Charlotte Tilbury has no patent for the Flawless Filter formulation, so there is little preventing MCo Beauty from making and selling a similar formula. Charlotte Tilbury’s trade mark protection also only covers ‘Hollywood Flawless Filter’ and not ‘Flawless’ alone. This distinction allows MCo Beauty to use ‘Flawless Glow’ without infringing Charlotte Tilbury’s trade mark. While the packaging of both products bears striking similarities, there are important differences that would be considered if passing off or deceptive and misleading conduct claims were pursued. Importantly, if a product resembles another but is clearly marked with its own brand or manufacturer, the general proposition is that it will not violate the law because this labelling clarifies the product’s origin and avoids confusion. This is not always the case, however, and substantiating a claim for passing off is ultimately a very fact-dependent question, taking into account not just the similarities in packaging but also whether those similarities are commonly used across the industry, as well as other factors such as the purchasing habits of ordinary consumers and the retail environments in which the products are sold.

Another example is Australian fragrance brand, Àerre, offering luxury-inspired perfumes without the luxury price tag.

Take, for example, Àerre’s ‘Bliss Release’ (RRP $55 for 50ml), which they advertise as being inspired by Maison Francis Kurkdjian’s ‘Baccarat Rouge 540’ (RRP $443 for 70ml). Àerre distinguishes itself through unique branding and packaging, and they explicitly state in their product descriptions that they are not affiliated with Maison Francis Kurkdjian and do not produce counterfeit versions. This assists in safeguarding Àerre against trade mark infringement, passing off, and misleading conduct, establishing their products as a legal and accessible alternative to the luxury scent.

Takeaways
Understanding these legal nuances empowers consumers to make informed choices while encouraging businesses to innovate responsibly within the bounds of the law.

If you are a business navigating the world of dupes or seeking to develop affordable alternatives to high-end products while ensuring compliance, reach out to our team of expert intellectual property lawyers.