In general, “dupes” are products that are similar to others already on the market, because they replicate distinctive features of original products. However, their proposal to offer more accessible alternatives to high-value items can raise important legal issues relating to the protection of intellectual property.
Although the popularity of “dupes” may give the impression that the sale of these cheaper versions is fully permitted in Brazil, the reality is that they can infringe trademark rights, protected design elements (industrial design) and the visual presentation of products, which falls under trade dress protection. Trade dress covers the whole image of a product or service, including packaging, design, colors, shapes and layout, and is essential for identifying a brand in the market.
In this context, the major risk for companies that produce and market “dupes” is the possibility of their activities being considered unfair competition, given that these companies earn profits by parasitically exploring the original brand’s investments, without adding their own value to the market. Unfair competition can result in serious financial losses, including the obligation to compensate the injured company based on the number of sales unduly obtained or the estimated turnover that the original brand would have achieved had there been no infringement. In addition, the infringing company may be sentenced to pay moral damages to the damaged brand.
For unfair competition to be characterized, the existence of a possibility of confusion on the part of the consumer is enough. In this situation, it is legitimate for brands that invest significantly in design and exclusivity to seek protection for their intellectual property, especially given the growing popularity of “dupes” and the influence of digital content creators in disseminating these products.
In this regard, it is important for entrepreneurs to take extra care when they create their product, so that while it mentions the inspired product, it has its own identity, such as different packaging, branding and names, with clear communication, without the intention of misleading the consumer. The “dupes” should only use the original product as an inspiration, in order to make a more accessible alternative, however, they should have an individuality so that the consumer clearly knows that they are buying the product of their brand, and not being fooled into thinking that they are buying the original product. In this sense, the protective measure for entrepreneurs who intend to manufacture/market a “dupe” consists of a thorough analysis of the impact that their product will generate and the image that it will transmit to the consumer, and there is a fine line between the “dupe” and the counterfeit/infringing product, which means that it is possible to market an inspiration, but it isn’t legal for the sale of your product to characterize unfair competition.
Counterfeit products are illegal copies of original products, intentionally designed to mislead the consumer into believing they are buying the genuine product. They have visual characteristics, packaging and design that are extremely similar to the product they tend to copy, but generally of a lower quality. Pirate copies appropriate the prestige and investments of a brand, with the intention of generating an association between its products and those of its competitor, and the business of the infringing brand will certainly be affected, which finds its distinctive signs the pillars of its business, being subject to all kinds of misfortune that such improper associations can cause, such as disappointment with the pirated products marketed and the experience created by it.
Therefore, the act of reproducing someone else’s trademark is a crime against Industrial Property. In fact, the right to object to third parties who intend to usurp your rights, in whole or in part, is protected under the terms of item I of article 189 of Law 9.279/96.
On the other hand, a “dupe” is a product that has been made by taking inspiration from another product that has a high value, with the intention of creating a “cheap version” of the original product. In this sense, the initial intention of the dupe is not to mislead the consumer into thinking they are buying the original product, but rather to let the consumer know exactly what product they are buying, because they are interested in a cheaper version of a product they cannot afford. In this sense, unlike the counterfeit product, the dupe is intended to be a legitimate alternative, with its own personality, containing different packaging, brands and names, and advertising to the consumer must be carried out clearly.
For this reason, it is essential that the entrepreneur takes care when they are creating dupes, ensuring that their product has its own identity. This can be a risky practice and, if the product misleads the consumer, its marketing could be considered unfair competition, subjecting the person responsible to the penalties provided for in the law, since inspiration is allowed, but literal copying or the creation of a product that could confuse the consumer is forbidden. Companies wishing to design on the basis of an existing product must ensure that their version has innovative features and its own identity.
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Author: Isabela Nicolella Vendramelli and Cesar Peduti Filho, Peduti Advogados
Source:
https://neofeed.com.br/finde/o-fenomeno-dupe-conquista-os-jovens-copia-ou-o-espirito-do-tempo/
https://sejarelevante.fdc.org.br/dupe-ou-fake-entenda-conceito-que-movimenta-a-geracao-z/
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If you want to learn more about this topic, contact the author or the managing partner, Dr. Cesar Peduti Filho.
