“Fast fashion, fast beauty, and the like have combined with the rise of social media influencers who can quickly promote low-cost goods in ways never seen before to create a perfect competitive storm for rights holders.” – Thomas Huthwaite
By Julius Melnitzer | November 6, 2025
Monitoring “dupes”—products that mimic the look, feel and function of higher-end consumer goods—is among the highest priorities for brand owners, designers, and manufacturers today.
“Fast fashion, fast beauty and the like have combined with the rise of social media influencers who can quickly promote low-cost goods in ways never seen before to create a perfect competitive storm for rights holders,” says Thomas Huthwaite, a principal at AJ Park Limited, a member of the IPH Network, where he leads the litigation and dispute resolution practice.
There is a wide spectrum of dupes from obvious replicas or counterfeits, through lower-priced alternatives of a high-end product. Sophisticated dupes seek to mimic the original without directly infringing traditional intellectual property (IP) rights.
“Nowadays, it’s possible to have quite a nice product that connects with luxury and is still affordable for 15 or 25-year-olds,” says Fionna Cumming, Huthwaite’s colleague at AJ Park, where she is a senior associate and trademark specialist.
The difficulty from an enforcement perspective is in dealing with dupes which do not claim to be the genuine item.
“In other words, sophisticated dupes may not draw close enough to traditional IP rights to engage infringement provisions,” Huthwaite says. “Rather, they aim at the architecture of the product, the packaging, the look, the feel, the colours, and the shapes—the generalised impressions of the original.”
Relying solely on traditional word or design trademarks, then, can leave gaps in IP protection that are being capitalised on by dupes. But a “non-traditional” trademark (also called a “distinguishing guise” or “trade dress protection”) can protect attributes such as colours, shapes and product packaging.
Obtaining a non-traditional trademark, however, often involves increased burdens for registration.
“The applicant must show not only that they want to use the non-traditional sign as a trademark, but that the consumers know that it already identifies the origin of your goods rather than someone else’s,” Huthwaite says.
Put another way, applicants must show that the non-traditional mark has “acquired distinctiveness” in the relevant market.
And proving “acquired distinctiveness” has its own problems.
“The more attributes you add to the non-traditional mark, the easier it is to obtain protection, but it also gives sophisticated copiers more options for mimicking your product,” Huthwaite says. “In other words, if you create a lot of doors, there are more places to break in.”
The trick, Huthwaite adds, is finding a balance broad enough to deter copycats but narrow enough to keep the product’s uniqueness and therefore its registrability.
Copyright may also be used in certain circumstances. But copyright covers only original expressions, not ideas, so the protection it affords may be limited.
Alternatively, brand owners may turn to industrial designs for protection. However, industrial designs typically require registration before being used or disclosed, and provide only fixed terms of protection—unlike trademarks, which rights holders may renew continually.
“This means you need a sophisticated manufacturer with the foresight to seek protection before using a product, and then continues to regularly update its portfolio,” Huthwaite says.
Still, when it comes to protecting products against dupes, “foresight” is the name of the game.
“The difference between rights holders doing well in this space and those who are not doing well is in monitoring the market and thinking through the process,” Huthwaite says. “Many brand owners are not taking note until it’s too late or they have already failed to keep in touch with social media trends—and dupes are undoubtedly a social media phenomenon.”
In the end, Cumming opines, there’s no silver bullet.
“What we recommend is a multi-faceted approach so our clients have a range of different protections and options in place before dupes pop up in their market. Trademarks, industrial designs, copyright, fair trading and passing off may all be relevant in dealing with a dupe,” she says. “It is not a good idea to think one type of intellectual property will do the trick. But there’s also another key part of effective action against dupes that is often overlooked, which is setting up good business practices in place to support enforcement.”
Among the business practices that Cumming recommends are:
- Keeping good documentary evidence of the creation and design process for unique product or packaging characteristics;
- Doing a pre-launch IP audit so registered trademark and design protection for unique products or packaging characteristics are in place before the new product hits the market;
- Using unique packaging characteristics consistently across a product range;
- Having a proactive enforcement program in place that covers regular checking of social media and e-commerce platforms; and
- Putting aside a budget for tackling infringements and dupes.
Cumming says that, in addition to traditional approaches to IP enforcement, IP lawyers may sometimes overlook how effective ‘softer’ forms of education and communication can be when rights-holders respond to dupes in the market. “For example, we have worked with some of our clients to create letters or information sheets communicating with retailers and influencers to educate about dupes – to explain how selling them can be problematic and encouraging retailers to be more attuned to the risks they may be taking in stocking or promoting dupes”.“
Sometimes these approaches can be more effective than traditional enforcement,” Cumming concludes.
Thomas Huthwaite and Fionna Cumming are based in Wellington, New Zealand. Find out more on the AJ Park website.
Julius Melnitzer is a Toronto-based legal affairs writer, ghostwriter, writing coach and media trainer. Readers can reach him at julius@legalwriter.net or on his website.