An Australian trade mark expert has told Ragtrader that dupe culture, particularly in fashion, isn’t going away anytime soon. But she thinks the leash is set to tighten.
Halfords IP partner Aparna Watal (pictured) expects to see increased trade mark protection of brand elements; more design registrations by fashion brands for distinctive silhouettes, unique packaging, hardware details, and surface patterns; and greater reliance on copyright law to target dupes where original prints, artistic patterns, or packaging or artwork has been intentionally copied.
Part of this is thanks to a recent landmark case between supermarket giant Aldi and the producer of Baby Bellies food, Hampden Holdings, in which the Federal Court of Australia found Aldi liable for copyright infringement.
According to Watal, the court determined that one of Aldi's Mamia-branded baby puff snacks closely resembled the packaging of Hampden's Baby Bellies products. Key elements such as the cartoon character, layout and font were found to be substantially similar.
On top of this, internal communications revealed that Aldi had used Baby Bellies' packaging as a "benchmark" for their design, indicating deliberate imitation. In his ruling, Justice Moshinsky described Aldi's conduct as "flagrant" and deemed an award of additional damages to be appropriate.
Aldi has appealed the decision, and it remains to be seen what comes of it.
“If this decision is upheld, it can set a precedent in Australia that while retailers may seek to offer cost-effective alternatives, there are legal limits to how closely they can intentionally mimic established brands' packaging and design elements,” Watal says.
“In the fashion industry, copyright is rarely available for protecting clothing designs once they’re commercially produced due to Australia’s copyright/design overlap rules.
“While it can still apply to elements like original prints or artistic patterns, fashion brands would be better served by relying on trade mark protection for distinctive product elements and registered design rights to safeguard the visual features of their products.”
Watal also believes Australia will see more precedent-setting cases that clarify how Australia’s IP laws apply to dupe culture, giving clearer guidance to both brand owners and imitators.
“Online platforms are also tightening their policies to satisfy rights-holders,” Watal adds. “For example, Amazon’s affiliate program now bans terms like ‘dupe’, ‘fake’, and ‘faux’ in connection with branded listings.
“We can expect stronger enforcement mechanisms and smarter detection tools across global and local platforms alike. Currently, enforcement is patchy. Sellers quickly adapt with euphemisms like ‘inspired by’ or ‘luxury for less’ or misspellings of dupe like ‘DOOP’.”
At the same time, Watal also reports that consumer awareness is shifting. While budget-consciousness remains high, buyers are becoming more discerning and demanding both transparency and quality.
She also sees regulators like the ACCC stepping up to tackle dupe culture.
“We’re seeing more scrutiny of marketing claims and influencer behaviour, especially where quality or affiliation is misrepresented,” Watal says. “This should help weed out the most deceptive examples and place more responsibility on brands, platforms, and promoters to play fair.”
The way dupe culture is shifting in Australia can also be noted in global court cases. One key example is Lululemon's highly popular Align leggings and Define jackets. Their popularity led to a surge in lower-priced alternatives, often referred to as "dupes" on platforms like Amazon and TikTok.
These dupes, while not counterfeit, closely mimic the design and feel of the original product.
“That’s why Lululemon’s approach of tackling dupes was very clever,” Watal says. “Lululemon hosted a ‘Dupe Swap’ event in LA, inviting customers to trade in knockoff Align leggings for a free pair of the real deal. It was a masterstroke in brand engagement."
Instead of condemning customers, Watal says they welcomed them in and let the product speak for itself.
“By putting their quality front and centre, Lululemon not only tackled the dupe issue head-on but also turned it into a loyalty-building moment."
Another prime example is Kim Kardashian’s SKIMS, which is believed to be one of the most duped brands in fashion globally. It has since spawned numerous cheaper look-alikes on marketplaces like Amazon.
“It’s important to note that these dupes are not counterfeit goods with fake SKIMS logos, but rather ‘look-alike’ products that emulate the style and even the feel,” Watal says. “They typically avoid using any registered trade marks or similar marks. That means they usually fall outside the scope of trade mark infringement unless their marketing crosses the line into something misleading or deceptive."
Watal says the challenge with dupe culture is that it’s like a game of whack-a-mole. “You shut down one lookalike and two more spring up."
She says brands need to recognise that the industry is in a new era where it is not just about being stylish, but it is also about being savvy.
“Dupes are no longer being purchased covertly to pass off as the original, but they are being seen as smart choices rather than dishonest ones. Brands that go in hard on dupes risk alienating their own consumer base.”
The scope for how dupes can market themselves using original brand names has also arguably widened, with Watal citing the 2023 High Court of Australia decision in Botox v Protox (Self Care IP Holdings v Allergan [2023] HCA 8). In that case, Allergan claimed that phrases like “instant Botox® alternative” and the name PROTOX infringed its BOTOX trade mark.
“The High Court disagreed,” Watal says. “It found that PROTOX wasn’t deceptively similar to BOTOX, and that the phrase “instant Botox® alternative” wasn’t being used as a trade mark. Because of that, the Court didn’t need to consider the defence of comparative advertising, but its overall reasoning emphasised the context of use, including the audience’s knowledge and expectations.
“With dupe culture being driven by savvy consumers who are knowingly seeking out alternatives, this decision might make it harder to take action against dupes. In my opinion, the case gives advertisers more leeway to do comparative advertising, so long as they don’t blur the line between cheeky and confusing.”
So, what can Australian brands do to combat dupe culture? From a legal perspective, Watal says the strongest foundation comes from securing and asserting your business’ intellectual property rights.
“Shape marks, colour marks, and composite trade marks are vital tools in the brand protection arsenal,” she says. “These can shield the elements that dupes often imitate without ever touching the name.”
Watal does concede that these kinds of marks can be harder to register, requiring evidence of distinctiveness and acquired reputation, but says they’re also tailored weapons for a battlefield that’s no longer about names, but narratives.
“In addition to trade mark protection for all the various brand elements, brand owners should consider seeking design registrations for distinctive visual features and relying on copyright for original packaging artwork or marketing assets,” Watal says. “Legal tools like passing off and consumer law also remain powerful, especially where the dupe’s packaging or marketing is likely to mislead consumers or cause confusion.”
Watal says battling dupes isn’t just about enforcing legal rights, it’s also about building smart, layered defences across design, branding, and marketing.
“Design thinking can be part of the core brand defence strategy. For instance, by introducing layered identifiers that combine shape, logos, colour cues, zipping or clothing opening mechanisms, embossing, or unique textures. These are not only harder to replicate but also easier to enforce.
“Use consistent design ‘signatures’ across product lines to create an ecosystem of recognisability. When these cues are reinforced in marketing, they build consumer association and can support future claims of passing off or misleading conduct.”
Another critical but often overlooked part of defending against dupes is ensuring a business's supply chain is contractually secured. Watal says brands must take proactive steps to prevent insider leakage of designs, samples, or production specs that can end up in the hands of fast-moving copycats.
“Use tight confidentiality and exclusivity clauses in manufacturing agreements, particularly when working with third-party factories in regions where knockoff production is prevalent. Clauses should cover not just the finished product but also materials, patterns, packaging, and any proprietary design features.
“Where possible, limit subcontracting, include audit rights, and require pre-approval for any production or material changes. Ensure that all IP created during development, such as prototypes, patterns, and packaging designs, are clearly assigned to your business. This helps prevent your designs from being reused or resold under a different label later.
“In a dupe-driven economy, your supply chain is also a frontline defence. Well-drafted contracts and tight operational controls reduce the risk of duplication at the source and support enforcement efforts if copycats do appear.”
Aparna Watal is a seasoned trade marks expert with extensive experience advising clients across Australia and New Zealand. She leads the trade marks and domain names practice at Halfords IP.