The Legal Limits of “Dupe” Marketing in Sol de Janeiro v MCoBeauty

The rise of so-called “dupes” has become a defining feature of contemporary consumer markets, particularly in the beauty and personal care sector. Products are no longer merely positioned as affordable alternatives. Instead; they are increasingly marketed through direct comparison, close visual proximity, and express assertions of equivalence, often amplified through influencer content and short-form digital advertising. While consumers may regard this as commercial pragmatism, the law has always been more cautious about conduct that trades on another brand’s reputation.

Those tensions are now squarely in issue in proceedings commenced in the United States by Sol de Janeiro against MCoBeauty. Although the case is being prosecuted under US law, the factual allegations and legal questions it raises would be immediately recognisable to Australian courts, and the dispute offers a timely lens through which to consider how similar conduct would likely be assessed under Australian legislation and case law.

Brand Identity, Trade Dress, and the Accumulation of Goodwill

Sol de Janeiro’s claim is grounded in the proposition that its Cheirosa fragrance mists derive their commercial value not solely from their scent, but from a carefully cultivated and consistently applied product identity. According to the pleadings, the combination of elongated translucent bottles, opaque white caps with embossed branding, geometric label framing, prominent numerical identifiers, and distinctive colour coding for individual fragrances forms part of the brand’s trade dress and functions as an indicator of source.

Australian law recognises that goodwill is not confined to names or logos, but may subsist in the overall presentation of a product, particularly where consumers have come to associate that presentation with a single trader. The value of such goodwill lies in its cumulative nature; rather than isolated individual elements. It is this combination of features, and the consumer perception they create, that is relevant.

Alleged Copying and the Role of Marketing Conduct

The Sol de Janeiro complaint does not rely solely on visual similarity. It alleges that MCoBeauty designed its fragrance mists so that each product visually aligns with a corresponding Cheirosa fragrance, including through matched colour palettes, similar bottle proportions, comparable numbering conventions, and near-identical packaging across the range. The allegation is not that MCoBeauty adopted general market trends, but that it replicated distinctive elements of Sol de Janeiro’s trade dress.

The dispute is further shared by the manner in which the products were marketed. Sol de Janeiro alleges that MCoBeauty promoted its fragrances as duplicates, using language such as “smells exactly like” and “a dupe for the mist we all love”, and that these representations were published, endorsed, and reinforced through influencer collaborations and curated customer reviews hosted on MCoBeauty’s own platforms. It is further alleged that those claims were not corrected despite MCoBeauty’s capacity to do so, and despite internal mechanisms for monitoring marketing content.

From a legal perspective, assertions of equivalence are capable of constituting representations of fact. Where such representations are made in a commercial context, they must not be false or misleading. Sol de Janeiro allege that MCoBeauty products differ in formulation, scent profile, and longevity, and contends that representations of exact duplication amount to false advertising and unfair competition.

Influencer Content and Attribution of Responsibility

A notable feature of the proceedings is the reliance on influencer content and customer reviews as part of the alleged conduct. The complaint proceeds on the basis that such content was not independent commentary, but formed part of MCoBeauty’s advertising ecosystem, having been sponsored, endorsed, reposted, or left uncorrected despite active engagement by the brand.

This reflects a broader legal and regulatory shift. Courts and regulators are increasingly reluctant to accept that brands can benefit from influencer endorsements while distancing themselves from responsibility for the representations those endorsements convey. Where a business cultivates, amplifies, or adopts third-party content, it may also adopt the legal consequences of that content.

How Australian Law Would Approach the Same Conduct

If similar conduct were litigated in Australia, the dispute would likely be framed through passing off, misleading or deceptive conduct under section 18 of the Australian Consumer Law (ACL), and potentially trade mark infringement, depending on the scope of registered rights.

Passing Off

The tort of passing off remains a primary means by which Australian courts protect commercial reputation and goodwill. Following Conagra Inc v McCain Foods (Aust) Pty Ltd[1], a claimant must establish reputation, misrepresentation, and damage. On the allegations made by Sol de Janeiro, reputation would be difficult to contest, given the global prominence of the brand and the recognisable nature of its product presentation.

The critical inquiry would be whether the overall conduct of MCoBeauty (taking into account packaging, colour coding, numbering, and marketing language) amounted to a misrepresentation that MCoBeauty’s products were associated with, approved by, or equivalent to those of Sol de Janeiro. While intention is not a necessary element, Australian courts have recognised that deliberate copying may support an inference of misrepresentation, as seen in Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 8).[2]

Misleading or Deceptive Conduct under the ACL

Section 18 of the ACL prohibits conduct that is misleading or deceptive, or likely to mislead or deceive. The focus is on the overall impression conveyed to the ordinary or reasonable consumer. Intention is not determinative; effect is.

In Campomar Sociedad, Limitada v Nike International Ltd,[3] the High Court emphasised that conduct must be assessed in context and through the eyes of the relevant class of consumers. Applied here, claims that a fragrance “smells exactly like” another, particularly when accompanied by closely aligned packaging and visual presentation, would likely be scrutinised as to whether they convey a factual equivalence that is capable of misleading consumers.

Australian courts have also recognised that silence or inaction may contribute to misleading conduct where a party allows a false impression to persist. In an influencer-driven marketing environment, a failure to correct inaccurate claims may itself give rise to liability.

Influencers and Regulatory Risk

The Australian Competition and Consumer Commission (ACCC) has indicated that businesses may be responsible for misleading representations made by influencers where those representations are sponsored, gifted, reposted, or otherwise adopted by the brand. This approach is consistent with the High Court’s reasoning in ACCC v TPG Internet Pty Ltd,[4] which confirms that advertising must be assessed in context, including the medium used and the manner in which consumers are likely to absorb the message.

On the type of allegations made by Sol de Janeiro, an Australian court would likely examine whether influencer statements of equivalence were effectively endorsed by MCoBeauty, and whether the brand’s engagement with that content rendered it responsible for the impressions conveyed.

Practical Implications for Australian Businesses

The Sol de Janeiro proceedings are still unfolding, and the allegations remain to be tested. However, the case illustrates a principle that Australian courts have articulated for decades: competition is lawful, imitation may be inevitable, but appropriation of another trader’s reputation is not lawful.

Businesses are entitled to sell lower-priced alternative products, but they must do so under their own branding and without creating a misleading association with an established competitor.

When marketing shifts from comparison to assertion, and when visual similarity is paired with claims of equivalence, the line between competition and misrepresentation becomes increasingly difficult to defend.

For Australian businesses operating in crowded and highly visual and brand-driven markets, the lesson is a practical one. Brand differentiation is not merely a marketing exercise; it is a legal safeguard.

At Snedden Hall & Gallop Lawyers, we regularly advise clients on navigating that boundary, ensuring that competitive strategies remain commercially effective without exposing the business to unnecessary legal risk.

 

[1] [1992] FCA 176; 33 FCR 302.

[2] [2008] FCA 470; ATPR 42–229.

[3] [2000] HCA 12; 202 CLR 45; 85 FCR 331; 74 ALJR 573; 169 ALR 677; (2000) AIPC ¶91–540; 46 IPR 481.

[4] [2013] HCA 54; 250 CLR 640.