From Chic to Copycat: What Trade Mark Law Has to Say About “Dupes”

In today’s consumer-driven market, the term “dupe” has become increasingly common, especially within the beauty, fashion and lifestyle sectors. A dupe, short for “duplicate,” typically refers to a product designed to closely resemble a more expensive or high-end item in appearance, function or overall aesthetic. However, unlike counterfeit goods, dupes typically avoid directly replicating trade marks or logos. Instead, they aim to offer a similar “look and feel” at a more accessible price point.

Although beauty dupes are often praised for making style and innovation more accessible, they also give rise to significant legal concerns. For brand owners, dupes may blur the line between fair competition and intellectual property infringement.

MCoBeauty’s History of Dupes

MCoBeauty, an Australian cosmetics brand known for its accessible alternatives to high-end beauty products, has become a prominent example in discussions around the legality of lookalike or imitation goods. While its dupe-centric business model has proven commercially successful, it has also attracted legal scrutiny from other brands concerned about potential misuse of intellectual property.

In 2021, MCoBeauty was involved in two significant legal disputes. The first was with the U.S. cosmetics company Tarte, which alleged that MCoBeauty’s concealer packaging bore a strong resemblance to Tarte’s popular “Shape Tape” concealer. Tarte expressed concern that the similarities in design could mislead consumers into believing the products were connected. The matter was resolved out of court, with MCoBeauty agreeing to alter its packaging to avoid further confusion.

In a separate dispute, Australian beauty company Chemcorp challenged MCoBeauty’s use of the name “2000Hours” for its lash and brow kit, claiming it infringed upon Chemcorp’s long-standing “1000Hour” trade mark. This case,  was also settled without proceeding to trial and MCoBeauty subsequently made changes to the product’s branding.

MCoBeauty has since employed strategic design choices to avoid further legal infringement. For instance, in developing a product similar to Charlotte Tilbury’s “Hollywood Flawless Filter,” MCoBeauty altered specific elements such as the shape of the bottle and the design of the label to differentiate its product. Their legal counsel noted that while Charlotte Tilbury holds trade marks for specific phrases and design elements, MCoBeauty’s modifications were sufficient to avoid infringement.

Tips for Australian Businesses

Understanding the boundaries of Australian trade mark law is essential for businesses aiming to protect their intellectual property or create trend-inspired products without legal risk. While many dupes avoid direct trade mark use and remain lawful, some may infringe trade mark rights, mislead consumers, or amount to passing off.

Key legal considerations include the use of names or logos that are substantially identical or deceptively similar to registered trade marks, which may mislead consumers about the product’s origin. Even without a registered mark, mimicking the overall look and feel of a well-known product can be problematic under the Australian Consumer Law or the common law tort of passing off if it implies a false association.

Business at Risk of Imitation

For businesses facing the challenge of imitation products, there are several enforcement mechanisms available under Australian law to protect their intellectual property and brand reputation. A common first step is issuing a cease and desist letter to the infringing party. This letter typically outlines the brand owner’s rights, identifies the infringing conduct and demands that the recipient immediately stop the activity or face further legal consequences. In many cases, this alone can lead to a swift resolution without the need for court proceedings.

Where informal action is unsuccessful or the infringement is particularly serious, brand owners may escalate the matter by initiating legal proceedings for trade mark infringement under the Trade Marks Act 1995 (Cth). Additional causes of action, such as misleading or deceptive conduct under the Australian Consumer Law or common law passing off, may also be relevant depending on the nature of the imitation. Legal action can result in remedies such as injunctions, damages, account of profits, or orders for the destruction of infringing goods.

In today’s digital landscape, monitoring online platforms is another essential enforcement tool. Brands should actively watch e-commerce websites, marketplaces, and social media channels for unauthorised listings that mimic their products. Many platforms offer reporting procedures or IP protection tools that allow rights holders to request the removal of infringing content efficiently.

Business Creating Dupes

Businesses looking to capitalise on popular trends by developing “inspired” or dupe products must tread carefully to avoid infringing intellectual property rights or misleading consumers. The first and most important step is to steer clear of using registered or unregistered trade marks owned by other brands. This includes avoiding names, logos, slogans and taglines that could be considered substantially identical or deceptively similar.

Equally important is avoiding packaging, colour schemes and design elements that create an overall impression closely resembling a well-known product. Even if a trade mark is not directly copied, the use of similar branding and presentation can give rise to claims under the Australian Consumer Law or through the tort of passing off if it misleads consumers or unfairly benefits from another brand’s reputation.

Using original names and distinctive marketing strategies can go a long way in helping a product stand on its own while reducing the risk of legal disputes. Businesses are encouraged to innovate in how they present their products rather than simply replicate the aesthetic or messaging of established market leaders.

Engaging an Attorney

Finally, seeking legal advice before launching a new product can save time, cost, and reputational damage in the long term. A trade mark attorney can assist in conducting trade mark clearance searches, reviewing packaging and promotional materials and identifying any legal red flags early in the product development process. Taking proactive steps to understand the limits of “inspiration” under Australian Trade Mark law is essential for staying on the right side of the law.

A business that receives a cease and desist letter alleging they have infringed upon another brand owner’s trade marks or intellectual property should treat this letter with seriousness, but not necessarily panic. In this scenario, it is important to seek advice from an intellectual property attorney without delay.  

If you require the assistance of a trade marks attorney, please reach out to us at MBIP. Our team would be happy to help you navigate this tricky legal area.