The Legal Maze of Copycat Products: Navigating Dupes and Protecting your Brand
Imagine walking through a maze where every turn reveals a familiar design with a subtle twist. Navigating brand dupes can sometimes feel like playing a game of cat-and-mouse, where even your dream product isn’t safe from a crafty copycat.
In today’s market, replicas of popular products are becoming more common and increasingly difficult to distinguish from the originals. This is driven in large part by increasing consumer demand for cheaper alternatives to luxury brands. However, these copycat products raise significant legal issues concerning intellectual property rights, consumer rights and market uniqueness.
What are the legal implications of the “dupe”?
Whilst it is easy to identify the trade mark and intellectual property issues which arise from the production and sale of counterfeit products (direct replicas of known products using their logos etc.) dupes, which seek to replicate the “look and feel” of a known product; without going so far as to be a direct copy, can occupy a more ambiguous space. Whilst a products look and feel (shape, colour, or other distinctive visual or other audible or olfactory elements) can be protected via a trademark, registering these non-traditional elements can be challenging, as the applicant must prove that consumers associate these elements as being uniquely associated with the specific brand.
Manufacturers of dupe products often don’t directly copy logos or branding but take strong inspiration from these and other design elements. In the past, more often than not these subtle changes have been found by courts to be enough to distinguish the respective products and prevent customer confusion. Underpinning this status quo is the idea that the law aims to find the balance between encouraging competition whilst also protecting existing brand owners.
When similarity crosses the line
For years, Aldi has been mimicking the popular packaging of its competitors, claiming that its products are just as high-quality but more affordable. This practice has led to numerous legal disputes since 2001, when Aldi first entered the Australian market. However, the company has consistently been able to defend itself against these allegations – until recently – by arguing that whilst many of their products imitate the look and feel of those mainstream products, that their products stand on their own merits, have additional descriptive and unique elements, and that there is no evidence of consumer confusion. This is particularly the case where the “dupe” products are often shelved directly next to the non-Aldi version of the relevant product; meaning confusion as to the origin of the product is unlikely.
However, in a landmark 2024 judgment, the Federal Court ruled against Aldi in a case brought by Hampden Holdings, the owner of Baby Bellies. The lawsuit, initiated in 2021, revolved around claims that Aldi had copied the design and layout of Baby Bellies’ children’s food products, including Baby Puffs. Upon examination of the packaging from both brands as seen in the below image, the Court scrutinised key elements such as the rounded font, cartoon imagery, and colour schemes. When viewed together, Aldi’s design features were found to constitute a significant portion of Hampden Holdings’ intellectual property. As a result, Aldi was deemed to have infringed upon these intellectual property rights, demonstrating the fine line between competitive similarity and copycat products.
Assuming this judgment is not appealed, this case not only creates larger implications for other “dupe” products stocked by Aldi, but also signals the possibility of increased scrutiny of dupe packaging designs in Australia.
Image: Federal Court of Australia in Hampden Holdings I.P. Pty Ltd v Aldi Foods Pty Ltd [2024] FCA 1452
What can business owners do to protect their brand?
As a business owner, you can utilise a combination of trade mark registrations, copyright, design registrations and patents to safeguard your products:
- Registered trade marks are essential for protecting brand names and logos against significantly similar goods/services.
- Copyright protects the reproduction and visual elements of an idea and is based on protecting creative skills.
- Design registrations are valuable for protecting the shape, appearance and packaging of your products.
- Patents, on the other hand, are aimed at protecting specific configurations or features of products.
Before advertising your product, ensure any intellectual property is registered. Posting your design on social media before registering your intellectual property might give copycat manufacturers the inspiration to produce a new product, making it difficult to prove legitimate ownership due to rapid information dissemination.
To stay ahead of dupe manufacturers, business owners should aim to differentiate their products by offering unique and personalised features that are difficult to imitate. Creating value for customers through distinct and innovative designs can protect against dupes.
If you are a business owner navigating the complexities of intellectual property law, or perhaps your brand has fallen victim to a dupe which you feel is misleading customers away from your business, reach out to our expert team of intellectual property lawyers at Quest Legal today.
-written by Luisa Perez-