Undeniably, the prevalence of “dupes” across various industries, including beauty, fashion, and food, is rapidly increasing. Dupes are products designed to emulate the qualities, benefits, and appearance of high-end products at a cheaper price point, making them more accessible to a broader demographic of consumers. However, the legal ramifications associated with dupes continues to be a developing story.

Aldi: “like brands, only cheaper”

One brand that has become renowned for its dupes is Aldi, a popular no-frills supermarket chain. In fact, this is one of Aldi’s main selling points; “like brands, only cheaper”. However, Aldi’s approach to “dupes” has not come without objection from the brands it seeks to emulate.

• In 2001, in a twisted tale between Aldi and Frito-Lay Trading Company GmbH, the Full Federal Court overturned a finding that Aldi’s use of “Cheezy Twists” on a cheese-flavoured snack infringed Frito-Lay’s TWISTIES trade mark used for its famous ‘Twisties’ products. The majority of the Full Court held that Aldi’s “Cheezy Twists” trade mark was not deceptively similar to the “TWISTIES” mark.
• In 2018, in a case between Aldi and Moroccanoil Ltd, Moroccanoil was unsuccessful in its claims that Aldi’s use of the words “Moroccan Argan Oil” constituted an infringement of its MORROCANOIL trade mark and misleading and deceptive conduct. In fact, in a further blow for the brand owner, the Full Federal Court held that the trade mark MORROCANOIL was not to any extent inherently adapted to distinguish Moroccanoil’s own products.

However, Aldi has not been entirely victorious with its approach to “dupe” products. In 2019, in the United Kingdom, Islestarr Holdings Ltd (Islestarr), the company behind the cult, high-end beauty brand Charlotte Tilbury, successfully brought a copyright infringement claim against Aldi. In that case, Islestarr successfully claimed that Aldi had infringed the copyright in its artistic works (specifically, the “Filmstar Bronze and Glow” palette design casing and the design embossed into the makeup pan). Aldi's conduct in selling its “Broadway Shape and Glow” palette with a similar starburst casing design and embossed powder design was found to have infringed the Islestarr trade mark.

More recently, in January 2025, in the high profile dispute between Thatchers Cider Company Ltd (Thatchers) and Aldi, the Court of Appeal in the United Kingdom overturned the decision of the judge in the Intellectual Property Enterprise Court and found that Aldi had infringed trademarks owned by Thatchers’ in its look-a-like packaging in relation to non-alcoholic cloudy lemon cider. In the decision, the Court of Appeal found that the degree of similarity between the trade marks was not only fleeting, but somewhat stronger and that Aldi’s packaging took unfair advantage of Thatchers’ well-known packaging trade mark. Interestingly, the UK Court of Appeal also took into account evidence that Aldi used Thatcher’s product as a “benchmark” for its packaging design. Aldi’s practice of “benchmarking” was a key factor in the recent Australian case we discuss below. Aldi has said it will appeal this decision, so there will be more developments to come.

It all goes Belly up for Aldi in Australia

Aldi’s dupes were also recently in the spotlight in Australia in Hampden Holdings I.P. Pty Ltd v Aldi Foods Pty Ltd [2024] FCA 1452 where the Federal Court of Australia found Aldi liable of infringing the copyright of Hampden Holdings IP Pty Ltd’s (Hampden) Baby Bellies brand of “Puff” snack foods for infants and children in contravention of the Copyright Act 1968 (Cth) (Copyright Act). A reproduction of some of the Hampden Puffs Works next to the infringing Aldi Puffs Works are reproduced below:

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In deciding that the Aldi Puffs Works had infringed the copyright of the Hampden Puffs Works, Justice Moshinsky undertook a qualitative test (not a quantitative test) and found that by reproducing the following layout and design elements, Aldi had reproduced a substantial part of Hampden’s original artistic work in the Aldi Puffs Works:

• a small, oval-shaped cartoon character, with a large, light-coloured belly;
• a solid white background;
• a two-column layout;
• a rounded, childlike font;
• on the left side, text elements of varying sizes, “stacked” vertically;
• on the right side, photographic images of the product and ingredients, in a vertical composition; and
• a number in the upper-right corner.

In doing so, his Honour rejected Aldi’s submission that Hampden was seeking to protect an idea of the “look and feel” of their products rather than a form of expression. His Honour also took the view that although there were some differences between the Aldi Puffs Works and the Hampden Puffs Works, this was insufficient to overcome a finding of objective similarity where the part taken is qualitatively significant.

In reaching the decision, his Honour gave considerable attention to Aldi’s design process behind its Aldi Puffs Works and the evidence demonstrating that Aldi had instructed its packaging designer to use the Hampden Puffs Packaging as the “benchmark” for the design of its snack range. This referred to a process of developing packaging that resembled the Hampden Puffs Works, although “not too closely”.

Due to the following factors, his Honour awarded additional damages against Aldi:

• Aldi’s conduct was flagrant given that the evidence demonstrated that Aldi had instructed its packaging designer to use the Hampden Puffs Works packaging as the “benchmark” for the design of the Aldi Puffs Works which involved a process of developing packaging that resembled the packaging of the Hampden Puffs Works, “albeit not too closely”;
• to deter similar infringements of copyright; and
• Aldi had continued to sell its Aldi Puffs products in packaging bearing the Aldi Puffs Works for some months after it had received a letter of demand from Hampden’s lawyers.

By way of postscript, at a case management hearing on 17 February 2025, Hampden raised concerns that despite the judgement in its favour, Aldi would continue to infringe its copyright in product packaging designs and sought a general injunction to prevent Aldi from infringing its copyright beyond the works identified in its Statement of Claim. Justice Moshinsky declined to grant the injunction.

It is still open for either party to appeal Justice Moshinsky’s decision and the quantum of damages is still to be determined, so we will keep watching closely for further developments.

What other recourse do brand owners have?

Perhaps learning from Aldi’s previous success and failures as outlined above, whilst Hampden only pleaded copyright infringement, brand owners may also have recourse against dupes in the several other ways, including:

• Trademark infringement - where a registered trade mark (or something substantially identical with, or deceptively similar to a registered trademark) is used by a competitor or copycat.
• Claims under the Australian Consumer Law (ACL) or the common law action of passing off where the use of similar “lookalike” packaging or get-up conveys false, misleading or deceptive representations to consumers. For example, where the copycat business falsely represents the origin of a product or falsely suggests an affiliation with, or endorsement by, the original brand or product.

The rise of dupe culture and consumer awareness

The rise of dupes raises many concerns, both for the original owner and the alleged copycats. These concerns become more complex in the context of the rising intelligence of the average Australian consumer. The growth of dupe culture, facilitated by marketing and promotion across all social media platforms, makes it hard to imagine a scenario where a consumer is not familiar with the concept of cheaper “duplicate” alternatives and is not (as a consequence) making informed decisions in the selection of products at the point of purchase.

Aldi has clearly positioned itself as a cheaper alternative to the original products that it is “duplicating”. As a result, consumers are aware of this marketing technique and decide to shop with Aldi, fully expecting to see dupes offered for sale. In those situations, can it really be said that consumers are misled by the marketing or as to a connection or affiliation between the original and the dupe? In many instances, we think that it would be unlikely for a court to find that this was the case. Indeed, this might be the reason why Hampden did not make any claims against Aldi for passing off or based on the ACL. Namely, as consumers know that Hampden’s products are not sold through Aldi’s exclusive (albeit cheaper) channels.

The need for increased protection for brand owners

The reality is that dupes are here to stay. It is therefore important for brand owners to adjust their legal, commercial and marketing strategies to ensure adequate brand protection. These strategies include traditional IP protection like trademark registrations for brand names, logos and slogans and design registrations for new and distinctive packaging, as well as less traditional protections like shape and colour trademarks. Similarly, cheaper alternative brands need to be aware that originators will increase their intellectual property protection, and the line between sailing too close to the wind and infringing on those rights will become increasingly difficult to navigate as seen in the recent decision.