The global industry is awash in "dupes", cheaper alternatives that mimic the look and feel of popular high-end products. Dupes thrive in an economy where consumers crave the taste of luxury at budget prices. Social media has supercharged the rise of dupes, where a single viral video can undercut sales of a cult-favourite product overnight. For consumers, it's a win. For brands who have spent years developing, formulating, packaging, marketing and building a reputation, it is a growing threat. It begs the question, is imitation truly the greatest form of flattery?
From a legal standpoint, not all imitation is unlawful. Dupes that serve to replicate only a product's function are typically not infringing. But when imitation extends to packaging, branding, and the overall "get-up" of a product, the legal risks for copycats, and the opportunities for enforcement by rights holders, increase significantly.
In South Africa, trade mark protection is governed by the Trade Marks Act 194 of 1993. Section 34(1) outlines that infringement occurs when a third party uses a mark identical or confusingly similar to a registered trade mark in a way likely to deceive or confuse the public. This is where many dupes cross the line, especially when they mimic the distinctive names or visual elements that consumers associate with a particular brand.
Brand owners' recourse is furthermore not limited to registered product names and logos but extends to packaging features that contribute to a product's unique identity under the South African common law. These visual elements are often referred to as a product's 'get-up' and can play a crucial role in enforcing rights. Where a business has not registered a trade mark, it may still pursue a claim under the common law principle of passing off, provided it can show that the brand has built goodwill and that a dupe misrepresents itself in a way that could cause damage.
Copyright law also plays a role, particularly where original artwork or graphic design is copied. If a dupe replicates label art, font styles, or unique visuals, the Copyright Act 98 of 1978 may provide a basis for legal action.
Enforcement should never be reactive. Especially in a world driven by social media, it is necessary to be proactive, and to act quickly. The line of first defence is still for businesses to prioritise early registration of trade marks and packaging elements. They should also maintain records of how its brands are used in the market, including in advertisements, social media campaigns, and on product packaging, as this evidence is often crucial in passing-off claims. Ongoing monitoring of online platforms, influencer content, and emerging dupe trends is furthermore key to staying ahead of infringement risks.
Cease-and-desist letters are often an effective first step and can lead to voluntary compliance. If not, formal proceedings may be instituted in the High Court. E-commerce platforms also often respond to intellectual property complaints, offering takedown procedures that help reduce market exposure.
Dupes are not just a global fad; they are a direct challenge to brand identity. The legal tools to address them exist in South Africa's IP framework, but it requires proactive steps to be taken. Businesses are encouraged to dupe the dupes by putting the required enforcement measures in place that will enable swift action in the protection of their market share.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
