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THE ELEVATION (AND PITFALLS) OF THE DUPE MARKET

April 16, 2021
April 16, 2021
SKINSKOOL

Driven by influencer-trusted recommendations and countless Reddit threads, as well as budget-savvy and quality-discerning consumers, dupes are a standout development of recent years. Some are seeking cruelty-free alternatives, the instant gratification of a similar product to bridge the restock wait for a sold-out item, or simply a replacement for a discontinued product. Tech-savvy Gen Zers and consumers dealing with the financial aftermath of the pandemic will only strengthen the trend. What began with the countless swatches of reviewers like Temptalia and Dupethat is now being assisted by technology to become a more effortless and sophisticated process.

With large manufacturers producing a plethora of brands, similar formulations are inevitable, but exploring the vast product landscape can be overwhelming from a consumer perspective. Enter SKINSKOOL, founded by Monieka Bos and Terry Chan, which describes itself as “the ultimate dupe finder for skincare.” The search engine offer comparable alternatives for 90% of available products, and is currently comprised of a 28,000+ item-strong database. At its heart lies an algorithm two years in the making. Ingredients are standardized, uniting the green tea and camellia sinensis so to speak, and products are compared on a match score percentage of overall comparability. 300,000 dupe searches were completed on the site in January of this year alone. The tool is free, with the company earning small affiliate commissions through purchases made through the site. In a similar vein, Brandefy offers skincare and makeup dupes for over 400 brands via an iPhone app, with 1,300 dupe reviews submitted by users, including side-by-side swatches. Founded by Meg Pryde and Carolyn Kochard, the company aims to reach 30 million people by 2025.

"Dupes are a recognized and celebrated part of the fashion and beauty industry, and consumers love them."
By Makeup Revolution

There are brands that have built entire business models around duping other products like Bad Habit, and Makeup Revolution, which was publicly criticized by Kat von D for their imitation of the original Shade & Light palette with the Ultra Eye Contour Light & Shade palette back in 2017. “Dupes are a recognized and celebrated part of the fashion and beauty industry, and consumers love them. […] We never knowingly infringe any design copyright or patent,” the company responded. The immense success of minimalist skincare brands proved exceptionally popular with audiences who are more focused on ingredients and results rather than lineage or extravagant packaging. “Fast beauty” companies, which can offer a cheaper and quicker-to-market product, emulate their prestige counterparts. This is forcing high-end brands to adopt a more innovative approach in their creation process, whether that is higher-end ingredients or unique formats and packaging. Counterfeits are another subset in their own right, with £2.2 million worth of fake product being seized in the UK in 2020.

There is a distinction between an inspired product and a blatant copy, with many companies using the grey zone of trademark, copyright, and patent laws within the beauty industry to their advantage. Within fragrance, there are brands creating “inspired by” scents emulating best-seller releases, including Nicco, Inspired By Fragrances, Fragrenza, KDJ Inspired, AF Fragrances, and ALT, using their similarity as a selling point. Scent companies buy their competitor’s latest release and “shoot the juice” through a gas chromatography mass spectrometer to read its chemical makeup. Some perfumers have added olfactorily undetectable naturals into the mix to confuse the machine reading to protect their formulas.

Legally speaking, trademark laws only protect the product if its design and packaging is non-functional and distinctive to that brand in particular, which offers much leeway for reinterpretations of an original design aesthetic. “If the design or packaging is not highly unique or unusual, or has not gained recognition over time or through ‘look for’ marketing, it may be difficult to show source-indicating function as required for trade dress protection,” states The Fashion Law blog. “When developing new products, the higher-end brands should consider adopting intellectual property strategies that will improve their ability to establish exclusive rights, which will allow them to enforce their rights against the imitators.” A specific combination of ingredients may be protected under patent legislations, but the list itself cannot be covered by copyright laws. Claiming a patented formula is theoretically acclaimed, but offers little protection against copycats.

In November 2018, L’Oréal filed a lawsuit against Drunk Elephant claiming the brand violated its L-ascorbic acid patent (number 7,179,841 to be specific). The case was settled out of court nearly two years later. European legislation offers more grounds for legal action than in the US, including regarding misleading imitations and marketing violating honest or fair business practices.

If different ingredients can have similar effects, a formula can be delicately altered so that it is not identical, yet still offers the same results. Ultimately, walking the line between affordable alternative and questionable imitation boils down to a truly unique factor: one’s own personal code of ethics.

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