DUPES AND DECEPTION: GOODWILL, IMITATION, AND CONSUMER PROTECTION IN AUSTRALIAN LAW

The proliferation of dupe products, particularly in the cosmetics industry, has reignited concern about the adequacy of legal protection against imitation branding. While such products often mimic the packaging, colour palettes and marketing strategies of established luxury brands, they are usually sold under distinct brand names and at lower price points. To brand owners, this practice appears to exploit accumulated goodwill and investment in brand image. To consumers, dupes may represent accessibility, choice and informed participation in competitive markets. How does Australian law seek to balance this? Although the tort of passing off and s 18 of the Australian Consumer Law (‘ACL’) do not prohibit imitation as such, they provide protection that is deliberately calibrated by reference to consumer perception to prevent consumer deception rather than to preserve brand exclusivity or aesthetic originality.

I PASSING OFF AS PROTECTION OF GOODWILL, NOT IMITATION

A persistent misconception surrounding passing off is that it protects creative expression or branding from being copied. The tort is in fact rooted historically in the common law action for deceit and remains anchored in consumer perception rather than originality.[1] As articulated in Reckitt & Colman v Borden, liability depends on proof of three elements, being goodwill, misrepresentation by the defendant and damage to the plaintiff’s goodwill.[2]

Goodwill, as described by Lord Macnaghten, is the “attractive force which brings in custom”.[3] It is not a proprietary right in packaging, trade dress or advertising. It is a relational form of commercial value grounded in consumer recognition and trust. Passing off therefore does not prohibit copying per se. Rather, it intervenes only where imitation amounts to a misrepresentation that causes consumers to believe the defendant’s goods are those of, or associated with, the plaintiff.

This doctrinal focus is especially significant in industries such as cosmetics, where visual similarity is common and trends circulate rapidly. The mere adoption of similar aesthetics does not suffice; the inquiry turns on whether consumers are likely to be deceived as to source.

II DUPES, MISREPRESENTATION AND THE REASONABLE CONSUMER

The High Court’s decision in Parkdale Custom Built Furniture v Puxu remains central to understanding how passing off operates in markets characterised by imitation.[4] Despite the close visual similarity between the competing furniture ranges, the Court held that there was no misrepresentation because the products were clearly labelled under different brand names.[5] Gibbs CJ and Brennan J emphasised that the law protects “reasonable” consumers exercising ordinary care, not those who are careless or inattentive.[6]

This reasoning translates directly to the cosmetics industry. Consumers purchasing dupes are often aware that they are buying products ‘inspired by’ luxury brands rather than originals. For example, MCoBeauty is a brand known for its accessible alternatives to high-end beauty products, with its business model centred on “luxe for less”.[7] MCoBeauty’s dupe “MCoBeauty Flawless Glow” of Charlotte Tilbury’s “Hollywood Flawless Filter” caused commotion across the industry. And yet, the product could be replicated because, while Charlotte Tilbury held trade mark protection over specific indicia, the overall get-up and branding adopted by MCoBeauty did not give rise to a misrepresentation.

As explained by MCoBeauty’s lawyer, while Charlotte Tilbury has a trademark for the phrase “Hollywood Flawless Filter”, it does not own the rights to the word “flawless”.[8] What was protected was Charlotte Tilbury’s diamond shaped label design and this was different on the MCoBeauty product.[9] From a doctrinal perspective, that transparency shields the dupe maker. From a brand owner’s perspective, it feels unfair and commercially frustrating. However, fairness alone does not ground liability in passing off.

Australian law’s refusal to intervene in such cases is less a failure to protect, but a reflection of its underlying logic. Cosmetic branding thrives on shared trends and so overprotection could suffocate competition and consumer choice. Passing off protects against deception, not against competition that merely feels unfair. Distinctly, the European Union prevents the taking of “unfair advantage” of marks with a reputation.[10]

III COMPETITION, IMITATION AND THE REJECTION OF UNFAIR COMPETITION

Australian courts have consistently resisted calls to expand passing off into a broader doctrine of unfair competition. In Moorgate Tobacco v Philip Morris, Deane J reminded that “unfair competition does not, in itself, provide a sufficient basis for relief under the law of this country”.[11]

The apparent ‘gap’ in protection against dupes is therefore principled. Preventing all aesthetic imitation could risk chilling competition, confer monopolies over product appearance or marketing strategies stifling innovation and granting de facto perpetual rights over styles and trends. In fast-moving consumer markets like cosmetics where branding thrives on shared trends, such overreach would undermine both competition and consumer choice.

The law’s restraint preserves a critical boundary in that it protects goodwill where it functions as a source identifier, but it does not transform reputation into a shield against legitimate competitive behaviour.

IV SECTION 18 OF THE ACL AND ITS CONVERGENCE WITH PASSING OFF

Although framed differently, s 18 of the ACL often operates in parallel with the tort of passing off in dupe cases. While the ACLframes the inquiry around “misleading or deceptive conduct in trade or commerce,” in practice the plaintiff still needs to show a reputation in the relevant indicia before any conduct can be misleading.[12] As Perram J observed in Mars v Sweet Rewards, reputation provides the “springboard” for the argument that consumers are deceived by imitation.[13]

In practice, the inquiry under s 18 mirrors that of passing off: whether reasonable consumers are likely to be misled as to source, sponsorship or affiliation. The doctrines coexist because they serve distinct normative purposes in that passing off protects trader goodwill, while s 18 protects consumers. Yet, their factual application often converges. This overlap does not render either doctrine redundant. Instead, it reflects a coherent regulatory approach that centres consumer perception rather than abstract notions of fairness between traders or “judicial indulgence of idiosyncratic notions of what is fair in the market.”[14]

V ADEQUACY RECONSIDERED

Whether passing off and s 18 of the ACL provide adequate protection depends on the perspective adopted. For luxury brand owners, the framework may appear under protective as it can lead to lost sales and reputational harm.[15] However, neither passing off nor the ACL exists to insulate traders from the effects of competition. Their purpose is to protect reasonable consumers from being misled, not to prevent others from drawing inspiration from successful products.[16]

From the consumer’s standpoint, the current balance arguably delivers sufficient protection. Dupes expand access and affordability, and many consumers knowingly engage in the imitation economy. Extending liability to mere resemblance could risk privileging corporate interests at the expense of consumer choice and market dynamism. Adequacy, therefore, depends on whose interests the law prioritises.

VI COMPARATIVE PERSPECTIVES AND THE CASE FOR RESTRAINT

Internationally, jurisdictions such as the United States and the European Union recognise anti-dilution laws that protect famous marks from “blurring” or “tarnishment” even in the absence of confusion.[17] While such regimes offer broader brand protection, they have attracted criticism for privileging brand image over competition.

Jessica Litman has argued that much of a brand’s image is constructed through consumer participation rather than corporate investment alone, and that increased dilution law risks suppressing parody, critique and creative reinterpretation. Against this backdrop, Australia’s refusal to adopt a general dilution doctrine reflects a conscious policy choice in favour of restraint.[18]

By limiting protection to cases of deception, Australian law avoids the overreach associated with dilution while preserving space for competitive and expressive activity.

VII CONCLUSION

Australian law does not prohibit dupes outright and this is a feature rather than a defect. By anchoring liability in consumer deception rather than imitation, the tort of passing off and s 18 of the ACL preserve both market integrity and competitive freedom. In markets driven by trends, aspiration and informed choice, adequacy lies not in expanding rights to encompass aesthetics or exclusivity, but in maintaining clear limits. The current framework strikes that balance, protecting market integrity without sacrificing competition or consumer autonomy.

VIII FOOTNOTES

[1] Millington v Fox (1838) 3 My & Cr 38; 40 ER 956; Perry v Truefitt (1842) 6 Beav 66; 49 ER 749.

[2] [1990] 1 WLR 491, 499.

[3] Inland Revenue Commissioners v Muller & Co’s Margarine Ltd [1901] AC 217, 223.

[4] (1982) 149 CLR 191.

[5] Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191, 199, 210-211, 225-226.

[6] Parkdale Custom Built Furniture v Puxu [1990] 1 WLR 491, 199.

[7] Kate Ainsworth & Emilia Terzon, ‘After being sued twice, MCoBeauty has become a multi-million-dollar empire built on beauty dupes’ (2024) Australian Broadcasting.

[8] Ibid.

[9] Ibid.

[10] Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark, art 8(5).

[11] (1984) 56 ALR 196, 210.

[12] Kathy Bowery et al, Australian Intellectual Property (Oxford University Press Australia & New Zealand, 3rd ed, 2020).

[13] Mars Australia Pty Ltd v Sweet Rewards Pty Ltd [2009] FCA 606; (2009) 81 IPR 354, 22.

[14] Deane J in Moorgate Tobacco v Philip Morris (1984) 56 ALR 196, 214.

[15] H EA, ‘Fake it ‘til you make it: The dubious rise of dupes’ (2025) Law Society of NSW Journal.

[16] Campomar Sociedad Limitada v Nike International Ltd (2000) 202 CLR 45, 105.

[17] Luminita Olteanu, The ‘trade-mark-law-and-innovation’ trap: why it would be wise to conceptualize innovation outside the realms of dilution protection’ (2022) 1798) Journal of Intellectual Property Law & Practice, 659.  

[18] J Litman, ‘Breakfast with Batman: The Public Interest in the Advertising Age’ (1999) 108 Yale Law Journal 1717, 1730.