Dupe or Theft? What Australian Trade Mark Law Says About Look-Alike Brands in 2026
"Dupes" are everywhere, the same packaging, the same colours, the same feel as a well-known product...
Dupe or Theft? What Australian Trade Mark Law Says About Look-Alike Brands in 2026
By IP Wealth · 13 July 2026 · 6 min read
"Dupes" are everywhere, the same packaging, the same colours, the same feel as a well-known product, just under a different name. But when does a dupe stop being clever marketing and start being a legal problem? Here's how Australian trade mark law treats look-alike brands in 2026, and what it means for protecting yours.
What exactly is a "dupe"?
A dupe is a product designed to evoke a more expensive or better-known brand without directly copying its name or logo. Think a fragrance that promises it "smells exactly like" a designer scent, or skincare packaged in near-identical colours and shapes to a viral original. Dupe culture has exploded on social media, where being the affordable "alternative" is a selling point rather than something to hide.
The legal grey area is deliberate. A good dupe mirrors the look and feel of a brand, its packaging, colour palette, shape and overall get-up, while stopping short of using the original's registered trade mark. That's what makes these disputes genuinely difficult, and why they've become one of the defining brand battlegrounds of 2026.
Is selling a dupe illegal in Australia?
Not automatically. Australian trade mark law turns on whether consumers are likely to be misled about who is behind a product. If shoppers clearly understand a dupe is an "inspired-by" alternative and not the real thing, straightforward trade mark infringement can be hard to make out, because the copycat has avoided using the actual registered mark.
But "hard" is not "impossible", and trade mark infringement is only one of several tools brand owners have. The picture changes quickly once packaging, get-up and marketing language enter the frame.
Three ways Australian law can protect a brand from copycats
Australian brand owners typically don't rely on a single cause of action. They stack them:
- Registered trade marks. A registration protects your brand name, logo and, importantly, can extend to distinctive elements like shapes and, in some cases, colours. The broader and better-drafted your registration, the more copycat conduct it can catch.
- Passing off. This protects the reputation and goodwill you've built. To succeed you generally need to show three things: an established reputation, a misrepresentation by the other party that confuses consumers, and resulting (or likely) damage to your business.
- Australian Consumer Law. Section 18 of the Australian Consumer Law prohibits misleading or deceptive conduct. Brand owners frequently run this alongside passing off, because packaging and "smells exactly like" style claims can cross the line into misleading consumers about origin or association.
The 2026 shift: as dupe disputes grow, we're seeing more attention on trade dress, the packaging, get-up and product design that make a brand instantly recognisable. Registering designs before launch is becoming a key proactive strategy to deter copycats and strengthen enforcement later.
Why "we've never registered anything" is the risky position
Many businesses assume that because they've used a name for years, it's automatically protected. Unregistered "common law" rights do exist, but enforcing them is slower, more expensive and less certain than relying on a registration. Worse, owners of unregistered brands often only discover a problem once confusion is already happening in the market and money has already been lost.
A registered trade mark flips that dynamic. It gives you a clear, enforceable right, makes it far easier to act quickly against copycats, and signals to would-be dupers that your brand is defended.
What brand owners should do now
- Register early and register broadly. Cover the name, the logo and the classes that matter to your business now and as you grow.
- Protect your get-up. Consider design registration for distinctive packaging, shapes and surface patterns, ideally before you go to market.
- Watch the market. Monitor the trade marks register and social platforms so you spot lookalikes early, while your options are widest.
- Get advice before you launch or before you enforce. The strongest position is built at the start, not in the middle of a dispute.
Frequently asked questions
Are dupes legal in Australia?
Selling a look-alike product isn't automatically illegal. It becomes a legal problem when consumers are likely to be misled about who makes or endorses the product, or when it infringes a registered trade mark, amounts to passing off, or breaches the Australian Consumer Law's ban on misleading or deceptive conduct.
Can I protect my product's packaging, not just my logo?
Often, yes. Distinctive packaging and "get-up" can be protected through a combination of trade mark registration, design registration and passing-off principles. Registering designs before launch is one of the most effective ways to guard your product's look.
Someone is copying my brand, what's my first step?
Don't confront them before you understand your rights. Get your registrations and evidence of reputation in order first, then take tailored advice on the strongest combination of trade mark, design and consumer-law arguments for your situation.
Worried your brand could be duped?
IP Wealth helps Australian businesses register, protect and defend their brands before the copycats arrive. Book a confidential chat with our trade mark team.
Talk to a trade mark specialistThis article is general information only and is not legal advice. For advice about your specific circumstances, contact IP Wealth on 1800 857 070 or mail@ipwealth.com.au.
