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Can the promotion of luxury brand replacements be a violation and lead to legal liability? What actions can the manufacturer of goods take when they notice an incentive to buy a cheaper equivalent? What should an influencer promoting dupes be aware of?
Recently, on social media, especially on Instagram and Tik Tok, but also on well-known sales platforms, the trend of promoting the so-called dupes - or cheaper replacements for luxury products - has been gaining popularity. We can already talk of dupe culture.1 This is especially common in the beauty industry, where high-end products may be expensive and less available to some consumers. Large-scale influencers publish posts in which they share their discoveries of "replacements" of cosmetics, perfumes or clothes that "are, or look, or act like the original", but "can be purchased for a fraction of the price". Although it may be alluring from the viewpoint of the consumer, it is worth considering whether such activities may violate the law.
What are dupes?
The term "dupe" comes from the word "duplicate" and refers to a product that is a cheaper equivalent, usually of a popular and often luxury item. However, it is not a counterfeit of a given product (e.g. it does not contain a well-known brand logo), but intentionally resembles it and has a similar or allegedly identical smell, formula or appearance, while its price is much lower.
Unlike counterfeits, dupes do not always constitute a clear violation of the law. However, this does not mean that they remain outside the scope of regulations on industrial property protection, copyright or combating unfair competition.
One product – many rights, many risks of violation
The same product may be protected by different intellectual property rights in parallel, thus the infringement may concern several of those at the same time. In practice, this means that different intellectual property rights can coexist and complement each other in one product, creating a strong and comprehensive market protection. Launching or promoting an identical or similar product may lead to cumulative liability, e.g. infringement of a trademark (e.g. a logo), an industrial design (e.g. packaging), copyright (e.g. graphics) and/or a patent (e.g. a cosmetic formula).
When does the dupe or the way it is promoted violate the law?
According to the Polish Industrial Property Law, it is a violation of the law to use a sign similar or identical to the protected trademark if it can mislead the consumer. In the case of reputable marks (i.e. very recognizable and prestigious ones which enjoy wider protection), it is a similarity that brings an undue advantage or is detrimental to the distinctive character or reputation of this type of mark (use or undermining of attractiveness and prestige).
Interestingly, even promoting products using hashtags with an exclusive brand name can also be a violation of the law. The assessment of this issue depends on various factors, while both the dupes' producers and the influencers who promote them should be careful when publishing posts with reference to other, especially reputable, brands.
In the context of industrial property law, it is also necessary to keep in mind the protected industrial design. Copying the unique design of the product or its packaging may be considered a violation of the law, and the manufacturer of the original, who has the right to register the design, may pursue claims.
Unfair competition and false advertising
Imitation of a product may constitute an act of unfair competition, i.e. an act contrary to the law or good conduct that threatens or violates the interest of another entrepreneur or customer. False advertising, which may affect the customer's decision to purchase the goods or services, is also prohibited.
Advertising is considered misleading when the customer obtains false ideas about the goods on its basis. A discrepancy in the idea of the product may result from objectively false information in a given advertising message or other factors that make even true information in this message lead to a false picture of reality.2 Any commercial communication aimed at promoting the sale or paid use of goods that is misleading constitutes a violation of the law.
Information that may mislead the consumer includes especially the following: quantity, quality, composition, method of production, suitability, applicability, repair or maintenance of the advertised goods. If the manufacturer or influencer promotes the product using false information about its properties, e.g. using the phrase "as effective as", they violate the law and may be held liable.
However, Polish law allows the so-called fair reference use. It comes down to the fact that someone else's trademark may be used for informational purposes, provided that this is done in a fair manner, in accordance with good commercial practices and without suggesting an economic relationship with the trademark owner.
It is also worth remembering that many exclusive products and their packaging are works within the meaning of the Act on Copyright and Related Rights, which are subject to protection. The authorized person whose proprietary copyrights have been violated may demand, among others, the cessation of violations, repairing the damage or issuing the benefits obtained.
How to act in accordance with the law?
Before launching the product, the manufacturer should carry out legal analyses to reduce the risk of claims from other entities.
When it comes to influencers, even if they don't produce or sell dupes, their promotional activity may be considered a violation of the law. First, before promoting a product, one ought to make sure it does not violate someone else's rights. And during the promotion, one should, as a rule, avoid comparisons that suggest that the promoted article is "the same" as another, reputable one.
Producers of goods at risk of exposure to dupes, in order to avoid losses - both image-based and related to the decline in sales of their luxury product - should monitor the market and react if there are products that can be labeled as dupes of a given brand. It is crucial to register trademarks and designs, and to patent solutions, which greatly facilitates the effective pursuit of claims.
Communication of brand values and uniqueness; consumer education
Dupes win in terms of price, but not authenticity. Luxury brands in marketing communication should emphasize that their value lies in something more. It is worth building the message around the quality, history, craftsmanship, heritage and intellectual value behind the brand
What should be of great importance to consumers is the products' safety. Therefore, it is crucial to emphasize the significance of dermatological tests carried out, and to show the differences between the original and the "inspiration" (e.g. durability, ingredients, certificates).
Many consumers are unaware that the promotion of dupes may be illegal, or that cheaper cosmetic substitutes may be harmful to human health due to the use of unsuitable ingredients or the lack of testing. It is a good idea to run information campaigns about the differences between the originals and "replacements".
Consumers should be made aware that reputation does not only mean luxury, but also a responsibility towards customers, employees and society, transparency, i.e. transparent actions without hiding relevant information, and high quality.
Consult a patent attorney!
In the era of influencer marketing and the growing legal awareness of consumers, the border between inspiration and violation of the law is becoming thinner. More and more well-known companies are choosing the legal route to protect their design and reputation. Therefore, being careful is advisable – both as a producer, and creator of advertising content. The producers of the so-called dupes, as well as the people promoting them on social media, should first acquire a legal analysis, lest they become key figures not of a media trend, but a court dispute.
If you want to check whether your brand or influencer activity is at legal risk, please contact our law firm. If, as an entrepreneur, you encounter dupes of your brands, contact us, and we will help you assess the situation and secure your interests.
Footnotes
2. J. Kępiński, J. Szwaja (ed.), Ustawa o zwalczaniu nieuczciwej konkurencji. Commentary, ed. 1, 2024
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.
