The ethics of a dupe

In the world of luxury fashion and cosmetics, certain products are aspirational – from Birkin bags to La Mer face creams. Peddled by marketers and influencers to the mass market, they are desirable but unattainable status symbols.

It’s enough to make anyone throw a tantrum in a Sephora aisle.

So, what are luxury lovers and makeup girlies meant to do when they have champagne tastes on a beer budget?

That’s where dupes comes in.

KnowYourMeme traces the word ‘dupe’ back to gaming communities meaning a duplicate of a collectable. But the term has been co-opted by online makeup and beauty communities, becoming synonymous with cheaper alternatives to popular or unattainable products.

Data from Google Trends shows searches for dupes taking off after the pandemic, presumably in response to economic trends and cost-of-living pressures.

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Australian company MCoBeauty made headlines earlier this year when they outlined that duping was “a pillar of their marketing strategy” and allowed the creation of a multi-million dollar makeup empire.

But is this legal?

A question of legality

James Fisher, a lecturer with expertise in contract law at The Australian National University (ANU), says duping can rub up against a number of aspects of commercial law.

“Surveying the landscape, what I see is a sea of permissiveness with some specific islands of prohibition. It’s legal as long as they don’t do something that isn’t,” Fisher says.

Things that may bring a duping company closer to breaking the law include violations of patents, trademarks, design rights or copyright issues relating to branding and packaging.

Companies with dupe products can also face claims relating to the tort of ‘passing off’ – a type of liability that prevents misrepresenting goods and services as being from another company and often overlaps with the protection of intellectual property.

“Taking a little look at the legal history of MCoBeauty in particular, it seems to be principally allegations of the tort of passing off and to some extent violations of actual intellectual property,” Fisher says.

Past legal cases against the company have been settled, and in one case may have led to changes to existing packaging. But the focus on potential consumer misunderstanding in these legal cases is questionable as it’s unlikely that a consumer seeking out a Chanel lipstick would accidently buy a dupe brand.

“The fact that these are being sold in, generally speaking, different retail environments – stack ’em high, sell ’em cheap in Big W – and they’re being sold at markedly different price points, means the prospect of confusion from reasonable consumers is pretty marginal,” Fisher says.

Gaming the system

Companies wishing to claim products as their intellectual property must go through a legal process and meet particular criteria to register their patent, trademark or design. The costs of doing so can make it cheaper and more desirable to leave products unpatented.

“Not only do you have the costs the research, marketing and everything else associated with producing a novel formula or a very distinctive trademark, but you’ve also got the legal and regulatory costs,” Fisher says.

 It’s this cost-cutting that duping companies can attempt to take advantage of – if a big brand hasn’t paid to register their products, are duping companies actually doing anything illegal?  Using different techniques to profit from the way the legal system is set up is hardly a new idea in the business world.

A common practice in the pharmaceutical industry, ‘evergreening’, is how companies prevent generic (and cheaper) versions of existing drugs from being produced by extending their patents and seeking patents on variations of the original drug.

“This is just rival capitalist interests.”

James Fisher

In the world of duping, the legal actions big brands bring against dupes can be seen as less of a quest for justice and more of a luxury turf war.

As chief executive of Tesla Motors, Elon Musk is also known for employing creative approaches to intellectual property.

Musk has publicly stated that “patents are for the weak” and stifle innovation, and has implemented an open-source patent policy at Tesla. Although the company’s website features a pledge not to pursue legal action against those who use their technology “in good faith”, Tesla sued an Australian company for patent infringement in 2023.

Fisher says the larger issue with duping is the question of whether it’s ethical.

“My personal view is that there’s not really much to choose from ethically, between the luxury producers keen to protect their turf – even turf they haven’t actually registered – and companies like MCoBeauty, who are trying, by their own admissions, to sail very close to the wind.” Fisher says.

“If the business model is to sail as close as you can [to replicating existing products] without actually doing anything illegal, I’m not going to say I don’t see it as ethically suspect, but I don’t see it as intrinsically more suspect than the business approach of the luxury brands here.

“Because what the luxury brands have an interest in doing is deploying litigation in order to get free protection for their brand even if they have not, in fact, paid to register. Even for elements they haven’t protected or weren’t able to protect because it wouldn’t have been deemed sufficiently distinctive or inventive.

“This is just rival capitalist interests. I don’t particularly see a strong moral case one way or the other.”