Legal Lookalikes: Inside the legal grey area of dupe culture in Australia
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In today’s consumer goods market, ‘dupe culture’ has rapidly expanded. Scroll through TikTok or Instagram for a few minutes, and you will see an influencer presenting two almost identical products side by side, one $60 and the other its $20 ‘dupe’. Brands like MCoBeauty have built their entire businesses based on this comparison, marketing themselves as an affordable alternative to premium products.[i] This works because dupe brands articulate their marketing and product design carefully enough to remain on the right side of the law, most of the time. A decision of the Full Federal Court this year found Aldi liable for copyright infringement in more of Hampden’s ‘Bellies’ packaging than was found by the original judge.[ii]
At face value, it appears that dupe culture is being caught by the law. However, on closer inspection, the case reveals how much room dupe brands have to operate within, and just how little copyright law protects brand owners, even when they win the dispute.
The Legal Gap
Trademark law is designed to protect specific names, logos, and phrases, not the overall look or feel of the product. [iii] Misleading and deceptive conduct under s 18 of the Australian Consumer Law requires establishing that the conduct would be at least likely to mislead or deceive customers.[iv] These laws are typically avoided by dupe companies by clearly branding their products as their own. This leaves copyright law, which is designed to protect the specific expression of an original idea, assessed item-by-item, without regard for the intention of the infringing party.[v] Between these provisions remains a wide grey area where dupe companies operate, giving companies a lawful space to benchmark a competitor’s design and avoid liability. This is because the ‘look and feel’ of a product is not protected by Australian law.[vi]
The Narrow Win of Aldi v Hampden Holdings
Hampden, the producer of the popular baby and child food products sold under the brands Baby Bellies, Little Bellies, and Mighty Bellies, alleged that Aldi’s MAMIA packaging copied the artistic elements of their packaging.[vii] Moshinsky J found that Aldi instructed its designers to ‘benchmark’ Hampden’s packaging and to follow its architecture, while trying to imitate it so closely, but not to breach the law[viii], and held that three of the eleven works infringed.[ix] In August 2026, on appeal, the Full Federal Court found that the original trial judge’s checklist approach to assessing infringement was flawed, and that a proper analysis requires a side-by-side approach.[x] Applying this test, the original three were upheld, and two more were found to infringe, making Aldi liable for a total of only five of eleven. Six products intentionally designed to echo the architecture of a competitor’s design escaped.
Copying Admitted, Liability Escaped in Bodum v H.A.G.
The judgment in Bodum AG v H.A.G demonstrated an unfavourable outcome for business owners seeking to protect their successful product designs after the expiry of their intellectual property rights.[xi] The Danish glassware designer Bodum alleged that Maxwell & Williams had copied the shape of their iconic Pavina glasses.[xii] In this case, H.A.G admitted that they intended to adopt the shape and design of Bodum’s DWG Products[xiii], H.A.G’s Director of Sales, Mr Daniel Grundmann, even internally described the product as ‘basically the Bodum shape’[xiv], and an internal presentation referred to the Bodum shapes and ‘their patent expired’.[xv]
Despite this, the passing off claim and the misleading and deceptive conduct claim pursuant to s 18 of the Australian Consumer Law failed.[xvi] The court held that there was no intention to deceive or mislead customers as H.A.G used its own branding and that the design’s registered protection cannot be revived through common law once lapsed.[xvii] The message here is that once a registered trademark expires, competitors are free to replicate their shape.
What this Pattern Demonstrates
Taken together, these cases reveal that intentional, even confessed copying is not unlawful on its own. What matters is whether the copy has used a legally protected element such as a name, trademarked design, or original artistic expression, not whether an ordinary consumer would recognise exactly what the dupe is intending to do. This demonstrates a strange concept of brand and consumer protection: to the average consumer, a copied artwork and a copied product shape would look to be alike, both just a copied product with a cheaper label. However, the law treats them entirely differently. One is illegal because the copyright survived on the artwork; the other is legal because the shape’s trademark expired. The law, which is designed to protect consumers from being misled, asks the narrower question of whether the different name on the box is enough to break the legal connection.
Aldi v Hampden gives future claimants a clearer legal test, and Bodum v H.A.G reveals how little the tests protect. Brand owners need an active, provable right to protect their design, not just evidence that a rival intends to copy it. This provides reassurance for the dupe market, even though express intent to imitate cannot occasion liability. Provided that a brand uses its own logos, images, and branding, Australian law is likely to allow dupe culture to continue to thrive.
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References
[i] Kate Ainsworth, 'MCoBeauty follows a rigorous process when it dupes cosmetics. Here's what it looks like', ABC News (Web Page, 6 July 2024) <https://www.abc.net.au/news/2024-07-04/mcobeauty-explains-beauty-dupe-process-product-development/104052268>.
[ii] Aldi Foods Pty Ltd v Hampden Holdings I.P. Pty Ltd [2026] FCAFC 103 (‘Aldi v Hampden Holdings’), [234]–[239].
[iii] IP Australia, What Are Trade Marks? (Web Page) <https://www.ipaustralia.gov.au/trade-marks/what-are-trade-marks>.
[iv] Competition and Consumer Act 2010 (Cth) sch 2 ('Australian Consumer Law') s 18.
[v] Copyright Act 1968 (Cth) s 32.
[vi] Gilbert + Tobin, 'The "Lawful-ish” Dupe: What Brand Owners Can Still Do When Consumers Know It's a Copy', Insights (Web Page, 19 May 2026) <https://www.gtlaw.com.au/insights/the-lawful-ish-dupe>.
[vii] Aldi v Hampden Holdings (n 2) [1].
[viii] Ibid [14].
[ix] Ibid [4].
[x] Ibid [97], [235].
[xi] Bodum AG v H.A.G Import Corpn (Australia) Pty Ltd [2026] FCA 238 (‘Bodum v H.A.G’).
[xii] Ibid [2]–[18].
[xiii] Ibid [20].
[xiv] Ibid [172].
[xv] Ibid.
[xvi] Ibid [21].
[xvii] Ibid [264].