Is Australian IP law strong enough to diminish dupe culture?

Australia’s IP law is facing a modern stress test, following a high-profile decision against Aldi in 2024. The Federal Court found Aldi’s Mamia Baby Puffs packaging constituted copyright infringement, marking a significant development in the enforcement landscape against lookalike products.

The matter is now under appeal, which means the outcome could redefine the legal thresholds for what constitutes illegal imitation in Australia’s growing dupe economy.

As dupe operators test the boundaries of IP law, how can brand owners shield themselves with enough protection?

Trademark infringement is becoming harder to enforce

The traditional counterfeit playbook, like replicating logos, brand names, or product identifiers, was once fairly black and white to enforce. Modern-day dupes are far more elusive, thriving in a “grey zone” and flirting with familiarity through brand packaging architecture, ingredient mimicry, and design language. This is enough to create brand recognition without crossing the line into direct infringement. Examples like Aldi and MCoBeauty have become masters at it.

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As seen in the Twisties case (Aldi Stores Ltd Partnership v Frito-Lay Trading Company GmbH [2001] FCA 1874), this kind of strategic mimicry can be legally defensible. Aldi’s “Cheese Twists” survived appeal despite its uncanny resemblance to Twisties, simply by using a different brand name.

The High Court’s decision in Self Care IP Holdings Pty Ltd v Allergan Australia Pty Ltd [2023] HCA 8 serves to embolden dupe brands. In that decision, promoting your brand as an alternative to well-known brands, e.g. “instant Botox® alternative”, was found to not be infringing use.

Six tactics to strengthen brand protection

Dupe culture is not going away anytime soon. Brand owners need to think beyond the word mark and focus on shape marks, colour marks, and composite trademarks. These branding tools can shield the elements that dupes often imitate, without ever touching the name.

These marks can be harder to register. They require evidence of distinctiveness and acquired reputation. But they’re also tailored weapons for a battlefield that’s no longer about names, but visual, sensorial and emotional narratives.

Key tactics to fight dupe culture can include:

1. Minimising generic words on branded packaging. These are easy to imitate and offer little protection. Instead, give more weight to coined or distinctive terms that are more legally defensible.
2. Creating layered identifiers, like blending a unique shape with a colour cue and a specific opening mechanism, to make imitation more difficult and obvious.
3. Leveraging distinctive storytelling throughout all areas of branding, including structural design, embossing and tactile finishes. These may be harder to replicate at low cost, especially for fast-moving dupers.
4. Designing recognisable branding signatures across your product family, such as angled lids, gradient fades, or embossed symbols, that create an ecosystem of recognisability.
5. Documenting and promoting those elements through marketing, so they gain consumer recognition.
6. Considering flipping the conversation on its head and tackling dupes transparently. Glade, which launched its own interactive Dupe Detector tool, helps consumers match its affordable products with the scent profiles of luxury candles.

Are social marketplaces gatekeepers or enablers of dupe culture?

The Australian Competition and Consumer Commission (ACCC) expressed concerns over misleading advertising practices on social media platforms. In a recent sweep, the ACCC found that a significant proportion of influencers were making posts that raised concerns under the Australian Consumer Law for potentially misleading advertising.

Social media platforms, like TikTok, play a pivotal role in the proliferation of the dupe economy. While they explicitly prohibit the sale, trade, or marketing of counterfeit goods on the platform, they do not ban the use of terms like “dupe” in content, allowing creators to share lookalike products that mimic the aesthetics or functionality of premium brands. This permissive environment has contributed to the virality of dupe culture.

Amazon’s affiliate program policy prohibits the use of terms like “dupe”, “fake”, or “faux” in connection with branded listings. This is a step in the right direction and helps limit the explicit promotion of copycat products. But it’s far from foolproof. Sellers can adapt, using subtler language like “inspired by”, “luxury look for less”, or “just like” to promote similar products while avoiding detection. As a result, the problem isn’t removed; it’s rebranded.

How is your brand uniquely recognisable? Protect those assets

When consumers buy into dupe culture, it’s because the affordability and accessibility of the product is too attractive to ignore.

As a brand owner, what visual or structural elements make your product undeniably yours? What’s being copied or nearly copied by the market? Then take steps to protect those assets with trademarks that reflect how consumers actually recognise your brand.

Protection isn’t about eliminating all imitation. It’s about defining and defending the lines no one else is legally allowed to cross.

Aparna Watal is a partner, leading the trademarks and domain names practice at Halfords IP.