Copycats, knockoffs or duplicates, most commonly known as “dupes”, are the names given to products that resemble other brands’ popular products in terms of design or functionality, but are sold under a different brand name and at a lower price.
Dupes should not be confused with fake or counterfeit products; counterfeits are illegal items that copy all the registered elements of a brand to mislead consumers into buying a fake good, while believing they are purchasing the original one.
In the current social media era, it is common to come across reviews of products that, at a lower price, deliver a similar function or result to a higher-priced product. One popular example is within the fragrances and cosmetics industries. Manufacturers of “dupes” might reverse-engineer a product to understand its functionality and then create a similar one without using the exact patented technology, if any, and would make slight changes to duplicate the overall look, feel, functionality, and even the smell.
A product that only resembles the functionality and overall look of another would be very unlikely to infringe a third-party right, especially if it does not completely or partially reproduce the name or branding of the original product; however, what happens in those cases where the components, design, packaging, and label are almost a duplicate of others?
Why trademark and copyright owners are not taking action against dupes that clearly reproduce their designs or packaging, generating an overall impression of the original product, which could even lead consumers to believe that they have the same origin?
The responses to these questions could be summarized in the following general factors:
- Proving Intellectual Property (IP) infringement in the dupe market can be difficult due to the subtle differences between dupes and original products. Since these products are not reproducing the original brand’s name and instead are often sold under other brands known for offering lower-cost goods, it may be difficult to prove that there is consumer confusion.
- Determining the jurisdictions affected, and in which countries the owners of IP hold rights in order to have grounds to attack a dupe product could represent a logistical issue difficult to solve.
- Litigation costs can be very high and could take several months or years to be resolved; therefore, these could offset the benefits of pursuing a legal action.
- Companies prefer to allocate their resources to focus on and act against counterfeits that are directly infringing their trademarks and/or copyrights.
Even if a dupe does not directly infringe an IP right, it could be seen as unfair competition if it profits from the reputation of a well-known brand by creating a similar product at a lower price, which happens not only with fragrances and cosmetics, but we are seeing it more often in the fashion industry, which is plagued mostly of dupes of bags and shoes from high-end and luxury brands.
Unlike counterfeiting products, dupes are being normalized, especially in social media, in which these types of products are gaining traction, given that they support the idea of not having to spend a lot of money for a high-end product to obtain the same or similar feeling.
Dupe culture has existed for many years, but the rise of social media, marketplaces, and in general, e-commerce, has increased its popularity among consumers, which could lead to unfair competition and business disadvantages threatening a brand’s IP rights.
A strategy adopted by companies that are choosing not to take legal actions against dupes is to take the effect that these cause among consumers to increase the desirability of the original product, which ultimately could result in profit for them.
As stated before, not all IP rights holders take action against dupes given the complications and costs related; however, ensuring the IP protection of their trademarks, industrial designs, trade dresses, and most importantly, non-traditional trademarks, is crucial to defend, when necessary, the uniqueness of a brand’s product.
Claudina González
claugonzalez@uhthoff.com.mx
