Legal Line Between Counterfeits And Dupes

The distinction between counterfeiting and dupes has become increasingly blurred in contemporary markets. While both phenomena involve imitation, the legal treatment of each differs significantly. Counterfeiting is universally condemned as unlawful whereas dupes occupy a more ambiguous legal space that turns less on imitation per se and more on the manner in which the imitation is marketed, presented and perceived by consumers. In the Indian intellectual property regime, the liability is determined in reference to deception, misrepresentation and the unauthorised exploitation of another's goodwill.

Counterfeiting: Imitation with Deception

Counterfeiting represents the clearest form of unlawful imitation. It involves the unauthorised use of a brand's trade mark, logo or other source identifiers in a manner that leads consumers to believe they are purchasing genuine goods. Counterfeit products typically replicate not only the appearance of the original but also its packaging and trade dress. Counterfeiting attracts liability under Section 29 of the Trade Marks Act, 1999 ("Act") which prohibits the use of identical or deceptively similar marks in relation to identical goods where such use is likely to cause confusion. The Supreme Court has consistently held that such conduct amounts to infringement without need for elaborate proof of confusion where identity is established as reaffirmed in Kaviraj Pandit Durga Dutt Sharma v. Navratna Pharmaceutical Laboratories¹. Counterfeiting may also give rise to criminal liability under Sections 102-104 of the Act reflecting the legislature's recognition of its serious economic and consumer harm.

Dupes and Lookalikes: Copying without Branding

Dupes by contrast typically do not use the registered trade mark or logo of the original product. Instead, they replicate the overall look, shape, colour palette or aesthetic of a popular product and offer it at a lower price point as an inspired or affordable alternative. From a legal perspective, the absence of a registered mark does not automatically immunise such products from challenge. Indian courts have long recognised that intellectual property protection extends beyond registered trade marks to the broader concept of goodwill and trade dress. However, unlike counterfeiting, dupe cases are rarely decided on copying alone. The inquiry shifts to whether the defendant's conduct amounts to misrepresentation or unfair appropriation of the plaintiff's reputation.

Passing Off and the Centrality of Conduct

The primary cause of action invoked against dupe products is passing off which is a common law remedy preserved under Section 27(2) of the Act. The classic trinity of passing off being goodwill, misrepresentation and damage was articulated by in Reckitt & Colman Products Limited v. Borden Inc.² and has been consistently applied by Indian courts. Indian jurisprudence emphasises that mere imitation of a product's appearance could be insufficient. What matters is whether the defendant's conduct misleads consumers into believing that the dupe originates from, is associated with or is endorsed by the original brand. This principle is reaffirmed by the Supreme Court in Cadila Health Care Limited v. Cadila Pharmaceuticals Limited³ where the Court stressed that the likelihood of confusion must be assessed from the perspective of the average consumer with imperfect recollection. In dupe cases, courts examine marketing strategies, product presentation, packaging, price positioning and disclaimers to determine whether the defendant is trading on the plaintiff's goodwill.

Trade Dress

Indian courts have increasingly recognised trade dress as a protectable interest even in the absence of registered marks. Trade dress includes the overall look and feel of a product encompassing shape, colour combinations, packaging style and visual presentation. In Colgate Palmolive Co. v. Anchor Health & Beauty Care Private Limited⁴, the Delhi High Court restrained the defendant from using a colour scheme and packaging that was deceptively similar to the plaintiff's holding that colour combinations and get-up can function as source identifiers. Similarly, in ITC Limited v. Britannia Industries Limited⁵, the Court held that the test is one of overall similarity not side-by-side comparison and that copying essential visual features may amount to passing off even where the brand name differs.

Consumer Perception

Indian courts consistently stress that outcomes in dupe-related disputes are fact specific. The assessment turns on the nature of the goods, the class of consumers, price differentials and purchasing behaviours. In markets where consumers are highly brand conscious and make deliberate purchasing decisions, courts may be less willing to infer confusion. Conversely, in fast moving consumer goods or fashion accessories where purchasing decisions are made quickly, courts are more alert to the risk of deception. This contextual approach aligns with the Supreme Court's guidance in Cadila Health Care, which cautioned against applying rigid formulas and instead emphasised a holistic evaluation.

Conclusion

The legal distinction between counterfeiting and dupes lies not in the act of copying alone but in the presence or absence of deception and unfair appropriation of goodwill. Counterfeiting is inherently unlawful because it misleads consumers through unauthorised branding. Dupes while not inherently illegal become actionable when they cross the line into misrepresentation or exploit another brand's reputation. Indian intellectual property law through a combination of statutory and common law principles seeks to strike a balance between protecting brand owners and preserving legitimate competition. For businesses operating in this space, the key takeaway is clear imitation without deception may be lawful, but imitation that trades on goodwill is not.

Footnotes

1 AIR 1965 SC 980

2 (1990) 1 All ER 873 (HL)

3 (2001) 5 SCC 73

4 2003 (27) PTC 478 (Del)

5 (2016) 65 PTC 1 (Del)

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