“[The manufacturers have] got to try and put forward evidence that they’ve used their package or their shape in the marketplace to such an extent that consumers have come to recognise it as a trade mark, and that’s difficult to do”
What are the legal complexities surrounding copycat products? From the challenges brands face in protecting their designs to the potential risks for consumers, this growing industry has far-reaching implications for manufacturers and shoppers.
In 2016, I found myself visiting the Eiffel Tower, Big Ben, and the Taj Mahal all in a single day. Impossible, you say? Not at Window of the World, a whimsical theme park tucked away in the southern Chinese city of Shenzhen. This architectural Disneyland boasts a collection of scaled replicas of famous world monuments, some impressively accurate, while others, well, let’s say they managed to capture the “spirit” of the original. As I scroll through my photo album and reminisce about my time in this miniature world, I question the legal implications of replicating iconic structures and, more broadly, consumer products: Where does inspiration end and imitation begin?
In the fast-paced world of consumer goods, replicas of everything from designer handbags and luxury watches to popular sneakers and trendy furniture flood the market. This booming industry, fuelled by the desire for affordable luxury and social media trends, raises complex legal questions about intellectual property, consumer rights, and originality. So, what’s driving this insatiable appetite for affordable luxury, and what are the implications for brands and consumers?
A booming industry
Designer brands often paint a world of effortless luxury, where owning the “it” bag, the latest shoes, or a piece of furniture unlocks a life of envy and admiration. For some, that desire to belong and to project an image of success is deeply ingrained. But whether it’s keeping up with the Joneses or the Kardashians, most consumers can only maintain this lifestyle for so long.
Enter the booming world of “dupes,” where nearly identical replicas of coveted designer goods, trending makeup, and even viral home décor have found their way into the hands of savvy consumers. Dupes, short for “duplicates,” are products designed to resemble higher-end items closely but with a significantly smaller price tag.
While not a new concept, the quality of dupes has improved significantly over the years, and thanks to social media, it has led to a cultural revolution. TikTok is saturated with “dupe influencers” showcasing incredible finds, from handbags that mirror luxury labels to eyeshadow palettes that rival high-end makeup. This online community has normalised the idea that achieving a desired aesthetic doesn’t have to break the bank.
While counterfeits directly infringe on trade marks and intellectual property, dupes occupy a more ambiguous space. They often take inspiration from design elements without directly copying logos or branding, which makes it challenging to take legal action against dupe manufacturers, further fuelling the industry’s growth.
However, the legal implications of these copycat goods can be far-reaching, posing challenges for manufacturers and shoppers. Protecting designs is crucial for creators in today’s competitive global market, but at the heart of the issue lies a complex web of intellectual property (IP) rights. Copyright, trade marks, and design registrations are just some of the tools that brands use to protect their creations, but are they enough?
Protecting original designs
Copyright protection arises the moment a design takes tangible form—whether it’s a sketch on a napkin or a detailed 3D model. This automatic protection covers the unique expression of the design, including its aesthetic elements, the arrangement of features, and even its packaging, but it doesn’t cover functional aspects.
So, does copyright apply to landmarks? Michael Handler, Professor in the Faculty of Law & Justice and the former Head of the School of Private and Commercial Law at UNSW explains to the Journal that while the extent to which IP rights are attached to landmarks and buildings is quite complicated and tends to work on a country-by-country basis, copyright can apply to buildings.

“…the author, often an architect of a building, would retain copyright in not just their plans, but the building itself and may be able to use that to prevent a replica being made,” he says.
He says you can get a copyright in literary works, computer code, music, or dramatic works like scripts. But for artistic works to be protected they need to fall within a listed sub-category, which includes photographs, sculptures, buildings, or “works of artistic craftsmanship”.
However, when it comes to consumer goods, Christine Ecob, an IP lawyer and Partner at Johnson Winter Slattery, explains that copyright protects creators during the development stage before they’ve produced multiple copies of an item – when more than 50 items are made. Once a product is commercialised, manufacturers must turn to other forms of IP protection, such as design registrations and trade marks, to safeguard their investments.
Design registration is a crucial tool in the fight against replica products. Ecob advises, “If you’re going to commercialise something, you need to think early about whether you can get a design registration, and you should also think about a trade mark application to register your trade mark.”
A design registration protects the novel, non-functional aspects of a product’s appearance, such as its shape, ornamentation, or packaging. Unlike copyright, which is lost once a product is mass-produced and can last for up to 10 years.
“…you get five years if you’re successful, and you can renew it for an extra five years. But at the end of 10 years, you’ll have no more design protection,” she says.
However, obtaining a design registration can be an investment, requiring detailed design drawings and a successful application process. For brands seeking to safeguard their products from copycat versions, design registration should be a key consideration in their IP strategy.
Ecob touches on patents as an additional layer of protection in some cases. Patents protect a product’s functional, innovative aspects rather than just its appearance. For consumer goods that incorporate unique technological features or inventions, a patent may be a viable option to prevent competitors from replicating the core functionality of the item. However, she notes that the bar for patentability is often higher for everyday consumer products, making this form of IP protection less common in that space.
“If it’s something patentable, you could patent it, but in terms of it being a novel invention that is a consumer good, less likely, maybe in the automotive space or something like that,” Ecob says.
Ecob highlights trade marks as another crucial component of an effective IP strategy. Trade mark registration allows manufacturers to register the name, brand name, logo they might put on the product, and a distinctive product shape.

Registering a product’s shape, colour, or other distinctive visual elements as a trade mark can provide long-lasting protection, as trade marks can be renewed indefinitely.
She illustrates the power of this approach by referring to Ferrero Rocher’s successful registration of the iconic shape of its chocolates and the packaging as trade marks. This allows Ferrero to take legal action against copycat products that closely mimic the trade marked elements, even if the brand name is not used.
In Australia, the trade mark system allows brand owners to register a wide range of signs as trade marks, including words, logos, packaging designs, and even the shapes of products themselves. However, registering these non-traditional trade marks can be challenging and doesn’t always favour the manufacturer.
Philips v. Remington [1998] was a case about electric shavers, where Philips had registered trade marks over the triangular shape of its shaver head. Remington started making a competing shaver with a similar shape but argued it used the shape for functional purposes, not as a trade mark. The courts accepted Remington’s argument, highlighting the difficulty in proving trade mark infringement when the defendant claims a functional use.
Michael Handler explains the key hurdle is the requirement of distinctiveness – the trade mark office and courts must be satisfied that the sign in question can distinguish the owner’s goods or services from those of competitors.
For product shapes or packaging, this often means demonstrating that consumers have come to recognise that particular shape or design as a trade mark rather than just as the product’s functional form. Providing evidence of extensive marketing, long-standing use, and consumer recognition is crucial. Even then, the trade mark owner may face arguments from competitors that they need to use similar shapes or designs for functional reasons.
Brand owners can protect diverse brand identifiers, but successfully registering and enforcing non-traditional trade marks requires careful strategy and a solid evidentiary case.
“… they’ve [the manufacturers] got to try and put forward evidence that they’ve used their package or their shape in the marketplace to such an extent that consumers have come to recognise it as a trade mark, and that’s difficult to do,” Handler says.
Navigating trade mark law in Australia can feel like walking a tightrope. It’s not enough to point to a similar product and cry foul. The law delves into a more abstract realm, considering not how real-world consumers react but the hypothetical responses of a “notional consumer.” This means that proving trade mark infringement often hinges on more than just demonstrating that some shoppers might get confused.

Interestingly, Handler says the law takes a broader view when it comes to “passing off,” which is essentially trying to trick consumers into thinking your product is someone else’s. It acknowledges that inspiration and competition are natural parts of the marketplace. So, even if a dupe manufacturer’s product looks remarkably like a competitor’s, the dupe producer can still avoid liability by clearly distinguishing their brand and offering.
For example, in Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982], a case involving two furniture manufacturers, the court ruled that even if products look very similar, other factors matter when determining if there’s been an attempt to mislead consumers. Despite nearly identical furniture designs, the defendant used a different brand name in this case. The court found this was enough to distinguish the products and prevent consumer confusion. This means copying a product’s appearance isn’t automatically illegal in Australia as long as other measures are taken to differentiate the offerings.
This might seem counterintuitive, but it highlights the law’s attempt to balance protecting brand owners with encouraging innovation and competition.
“It can be quite challenging for brand owners to stop dupes on that basis,” Handler says.
He suggests that a design registration provides much more robust protection, making any close copy an infringement. However, this comes with the caveats of a formal registration process and a limited protection period.
A patchwork approach
Product replicas and dupes have become a global challenge for brand owners. However, the legal approaches to this problem vary significantly across different jurisdictions, creating a complex patchwork of regulations. At one end of the spectrum are countries like Germany and the Netherlands, known for having some of the strongest unfair competition laws. These laws often include doctrines that can prohibit the “slavish imitation” of product designs, even without consumer confusion.
Michael Handler explains these countries focus more on preventing the “free riding” on a brand owner’s investment and reputation rather than just protecting against consumer deception.
Handler says Australian courts have historically been sceptical of establishing a general tort of unfair competition, preferring to focus on specific intellectual property rights and consumer protection.
This approach is rooted in Australia’s legal tradition, which favours free competition and relies on legislation to define intellectual property protection.
The landmark case, Moorgate Tobacco Ltd. v. Philip Morris Ltd. [1984], solidified this position by rejecting the concept of unfair competition as a general tort. The court’s decision emphasised that information and knowledge are not considered individual property unless protected by patents, trade marks, or copyrights. This ruling restricts unfair competition claims to “passing off” actions involving deceptive or confusing trade marks.
In this case, the court rejected the idea of a broad unfair competition doctrine, viewing it as an avenue for subjective judicial interpretations. This stance reflects the Australian courts’ preference for clear intellectual property statutes and their conservative approach to expanding property rights – focusing on balancing fair competition and consumer protection rather than broadly preventing “unfair” conduct.
While the decision sparked debate among legal scholars, it has significant implications for businesses operating in Australia. It emphasises the need for clear, legally sound strategies in trade mark and intellectual property management.

“The minute you’ve advertised your product, and there are images of the new product on your social media platforms, all the copycats have lots of details about your product and can start producing their copies. If you wait until there are copycat products out there affecting your sales, then you may find you have lost your right to register the design of your product. It may be too late”
Challenges of IP protection
The challenges only compound when crossing international borders. Copyright and trade mark laws can vary significantly between jurisdictions, leaving manufacturers vulnerable to copycat products in markets where their IP is unprotected.
While intellectual property rights offer valuable tools for manufacturers to safeguard their products, effective IP protection can be an uphill battle. One of the primary challenges is the speed at which copycat products can emerge in the market.
As Ecob explains, “The minute you’ve advertised your product, and there are images of the new product on your social media platforms, all the copycats have lots of details about your product and can start producing their copies. If you wait until there are copycat products out there affecting your sales, then you may find you have lost your right to register the design of your product. It may be too late.”
Rapid product information dissemination leaves little time for manufacturers to secure the necessary IP protections before replicas start flooding the market. By the time a design registration or trade mark is in place, the copycat producers may have already established a foothold, making it challenging to enforce the legitimate brand’s rights.
Additionally, the jurisdictional nature of IP protection can create significant vulnerabilities for brands. Ecob notes that while manufacturers can apply to register a trade mark in other countries where they intend to sell or think they might sell in the future through the World Intellectual Property Organisation (WIPO), doing so is expensive and will not always be worth the investment.
This lack of harmonised global IP laws means that manufacturers must carefully navigate the nuances of each market, adding complexity and cost to their protection efforts. Even when IP rights are secured, enforcing them can be arduous and resource-intensive. Monitoring the market for copycat products, identifying the sources, and initiating legal action requires a dedicated team and substantial financial investment—a luxury many smaller brands simply cannot afford.
The evolving nature of the replica industry, with the rise of supermarket own-brand products and the increasing ease of manufacturing and distributing counterfeit goods, further compounds the challenges legitimate manufacturers face. Staying ahead of the curve and maintaining a comprehensive IP strategy has become an ongoing battle with no easy solutions.
The differing legal landscapes create both opportunities and challenges for global brands. While some regions offer more robust protection against replicas, others may require a more nuanced approach, balancing the interests of brand owners, competitors, and consumers.
Understanding these regional variations is crucial for brand owners looking to protect their intellectual property on a global scale. A one-size-fits-all strategy is unlikely to be effective, and companies must carefully navigate the patchwork of laws to safeguard their hard-earned reputations.

As the battle against product replicas continues, the need for harmonised international standards and cooperation among jurisdictions becomes increasingly apparent. Until then, brand owners must remain vigilant and adaptable, leveraging the unique legal tools available in each market to combat the ever-evolving challenge of product duplication.
Duping consumers
Beyond the immediate risks to consumers, the explosion of replica goods poses a significant threat to the brands they imitate. When unsuspecting shoppers purchase a dupe product, believing it to be genuine, the consequences can harm the original brand’s reputation.
This dual impact – lost sales and reputational harm – can devastate brands, especially those that have invested heavily in cultivating a premium image and loyal customer base. If consumers associate a brand with poor quality or unsatisfactory experiences due to duped goods, it can undermine years of carefully crafted marketing and brand positioning. Regaining that trust and rebuilding the brand’s reputation can be an arduous and costly endeavour, making the threat of replica products all the more concerning for legitimate manufacturers.
During September this year, a pop-up store claiming to be Crumbl Cookies caused a stir in Bondi, drawing massive crowds with the promise of the famed American cookies. However, the sweet excitement quickly turned sour as customers discovered the operation was not affiliated with the Crumbl brand, and the cookies were far from fresh.
Hundreds of eager dessert enthusiasts lined up for hours, lured by social media posts showcasing the iconic pink boxes and a menu boasting classic Crumbl flavours. However, many were shocked to find themselves paying a hefty AUD$17.50 per cookie, nearly double the US price.
The incident sparked outrage online, with many accusing the organisers of exploiting consumer demand and tarnishing the Crumbl brand. “This felt like a scam,” commented one social media user. “They used Crumbl’s name and image to trick people.”
While the pop-up organisers have not publicly commented, the incident has raised questions about the legal grey area surrounding unofficial brand events and the ethical implications of “dupe culture.”
The dangers of dupes
With the ongoing cost of living crisis, it’s tempting for consumers to purchase the cheaper option. Still, when they purchase a dupe, they essentially gamble on the product’s quality and performance. Unlike the rigorous testing and quality control measures implemented by the original creator, replica producers often cut corners to maximise profits. This can result in low-quality craftsmanship, substandard materials, and a general lack of durability.
However, the risks associated with dupes extend far beyond quality concerns. Sometimes, these copycat goods can pose serious safety hazards to unsuspecting consumers. Electrical devices, toys, and even personal care items have been found to contain dangerous materials or faulty components that can put users at risk.
An article published in May this year on the product review website Choice warned consumers about the dangers of unsafe mini electric heaters, specifically plug-in models banned in Australia due to failing safety tests and posing fire and explosion risks. Despite the ban, these heaters continued to be sold online, often through overseas retailers.
Choice strongly advises consumers not to purchase these heaters and to be aware of the potential dangers. The ACCC is working to enforce the ban and remove these unsafe products from the market.
In the cosmetics industry, MCoBeauty, an Australian company, is no stranger to straddling the line between inspiration and infringement. It has become a multi-million dollar company known for its affordable dupes. Most recently, the company released a product strikingly similar to Charlotte Tilbury’s luxury “Hollywood Flawless Filter,” igniting a debate about the ethics and legalities of mimicking high-end products.
Both featured a rose-gold bottle with a dropper, a liquid highlighter formula, and names including the word “flawless.” While MCoBeauty carefully avoided directly infringing on Charlotte Tilbury’s trade marks, the overall impression of the product and its packaging echoed the luxury brand. This raised concerns among the public about “passing off,” where consumers might mistakenly purchase the MCoBeauty product, believing it to be the Charlotte Tilbury original.
Despite the public outcry and accusations of riding on Charlotte Tilbury’s coattails, no legal action had taken place at the time this article was published.

The ethical dilemma surrounding “dupes” like McoBeauty’s products centres on the tension between fair competition and consumer protection. While mimicking successful products might seem inherently unfair, the law focuses primarily on preventing consumer deception rather than regulating “free riding” on another brand’s reputation. This means that simply copying a product’s design or concept isn’t necessarily illegal as long as consumers aren’t misled about its origin or quality.
While it highlights the difficulty in pursuing legal action against dupe brands that skilfully navigate the boundaries of IP law, some would argue it allows for greater competition, which is a win for consumers.
Ecob says when a dupe manufacturer takes the approach of picking up some key points from the original product without misleading them and signifies to a consumer that it is an equivalent product to the original, but at a lower price, this can be good for consumers.
“…if they’re happy with it, then they’re getting something equivalent at a cheaper price. So it’s good for consumers, it’s good for competition, and may encourage the original manufacturer to drop their prices to make it hard for the copycat to succeed.”
However, the accessibility offered by dupes should not come at the expense of fair compensation for creators. Designers, artists, and innovators invest time, resources, and talent into developing original creations. Dupes flooding the market can undermine their livelihood and discourage future innovation. Striking a balance between accessibility and fair compensation requires a multifaceted approach. Consumers can play their part by making informed choices and supporting brands that value ethical production, fair wages, and sustainable practices. This conscious consumption can encourage a shift towards a more responsible and equitable marketplace.
Transparency is vital for dupe manufacturers. By being open about their production processes and avoiding any misleading claims about the origin or design of their products, they can build trust with consumers and foster a fairer competitive environment.
Brands can focus on innovation and differentiation to stay ahead in the dupe landscape. By offering unique experiences, personalised services, and innovative features that are difficult to replicate, they can create genuine value for consumers and maintain a competitive edge.
Collaboration and licensing agreements offer a potential win-win solution for creators and dupe manufacturers. These agreements can allow for broader distribution of designs while ensuring fair compensation for the original creators, fostering a more sustainable industry.

The future of dupes
The current legal framework in Australia leaves room for ethical debate. Some argue that dupes exploit the investments and creativity of original brands, unfairly benefiting from their established reputation.
However, others might see dupes as accessible innovation, offering similar products at lower prices. The Australian Consumer Law prioritises preventing consumer harm over addressing broader ethical concerns about fairness and free riding in the marketplace. This leaves consumers responsible for being discerning and informed, while brands must rely on intellectual property protection and continuous innovation to differentiate themselves.
As the replica industry continues to evolve, the legal landscape will also likely adapt. Ecob predicts that more manufacturers will turn to shape trade marks to protect their products, registering distinctive designs and packaging to deter copycats. “I would say, generally, it’s probably easier for the copycat people, the more technology and the speed of things have increased, and it’ll be interesting to see what extent more manufacturers start to go for brand shape, trade marks and those sorts of things to protect their products,” Ecob notes.
Additionally, the potential for stricter regulations governing product information, safety, and quality standards could further complicate the replica industry’s operations. As consumer awareness of the risks associated with counterfeit goods grows, lawmakers may be compelled to enact more robust measures to protect brands and shoppers.
Navigating the evolving legal landscape will require replica manufacturers to stay agile and adaptable, while legitimate brands must continue to invest in comprehensive IP protection strategies to safeguard their creations.
The battle between original and copycat may never be fully resolved, but the stakes continue to rise for all parties involved.