A Series on Lookalikes, Copycats, and Dupes – Part 1: Unfair Competition

Introduction

Products that attempt to take advantage of the reputation of originals or deceive consumers about their origin have become a common feature of the market in recent years. Products that intentionally mimic the appearance, packaging, or overall impression of another established product – without, however, copying a competitor’s trade mark – are generally referred to as “lookalikes” (from the English “look alike,” meaning to look like). These are typically consumer goods, such as food, beverages, cosmetics, or food supplements, that seek to evoke an association with another manufacturer’s products. However, when the design, concept, or layout of the original’s graphic elements is copied almost exactly, we refer to them as “copycats.”

In contrast, the term “dupes” has become established for cheaper alternatives that offer a similar experience, scent, or function as the more expensive original without copying its appearance. Typically, this refers to how perfume imitations are marketed, for example by labeling a product as an imitation of Chanel No. 5 – that is, a direct (and usually dishonest) comparison between the original and the imitation.

Thanks to platforms like TikTok and low-cost e-commerce sites such as Temu or Shein, this phenomenon has gained unprecedented momentum. Consumers are increasingly seeking out imitations and view purchasing them as a smart choice, since they are essentially buying the same thing while saving money. It is precisely this shift in consumer attitude that presents a new challenge for brand owners.

However, not every imitation is automatically illegal. The law distinguishes a spectrum ranging from “classic” counterfeits (copying a traditional word or figurative mark or design) through lookalikes / copycats (imitating the graphic design or shape of another product without copying the brand name or logo) and dupes (imitating the scent or experience associated with the original) to legal generic alternatives (functionally comparable products with a different appearance and without imitating the original’s characteristics). In the first part of this series, we will focus on protection against imitations through unfair competition law. This law prohibits conduct in commercial dealings that is contrary to the good morals of competition and is capable of causing harm to other competitors or customers. In addition to a possible violation of this general clause, the following specific forms of unfair competition are particularly relevant in the context of imitations: causing a likelihood of confusion, free-riding on reputation, or impermissible comparative advertising.

1. Assessment of the Likelihood of Confusion of an Imitation from the Perspective of Unfair Competition

Causing a likelihood of confusion, as a specific form of unfair competition, covers the imitation of a product’s external appearance or its packaging in a manner that may give the consumer the impression that the product originates from another competitor. In this regard, the decisive factor is the overall impression of the average consumer, not a comparison of individual elements. However, the law also sets a limit: the imitation of elements that are functionally, technically or aesthetically determined by the nature of the product does not in itself constitute unfair competition – but the imitator must take all reasonably available measures to prevent confusion.

Czech case law offers a number of illustrative cases involving unlawful imitations of other competitors’ products. In the Termix case, the defendant placed products with packaging colors and typography, as well as the placement of the sign and logo, on the market that were strikingly similar to the plaintiff’s Termix products, thereby creating the impression that these were additional, so-called “extended” product lines. The courts concluded that the defendant had ample opportunity to differentiate the design of its product packaging but failed to do so.¹

At the same time, it is true that merely placing one’s own logo on an otherwise nearly identical product may not, in and of itself, be sufficient to distinguish it. This was the case in Tefal, where Sencor electric kettles imitated Tefal kettles in shape, lid design, and handle, and the defendant argued, among other things, that it had distinguished its product by affixing its own trade mark to the kettle. The Supreme Court explicitly stated here that “the defendant’s view that the product was distinguished (…) merely by the inclusion of the company logo is incorrect; what is decisive is whether the placement of the company logo and other (…) elements resulted in a distinction from the plaintiff’s product.”² On the other hand, not every similarity is unlawful. For example, in the “Krtkův dort” case, the High Court in Prague dismissed the action because the general geometric shape of the cake – sold by the plaintiff as “Krtkův dort” – cannot be distinctive of a single competitor if other manufacturers also commonly use it (in the defendant’s case, under the brand name “Drobený dort”). The court drew on case law from the First Czechoslovak Republic, according to which “a mere geometric shape of a product, which is in itself not distinctive, cannot become distinctive for the product (…), unless it is presented in a certain way such that this presentation becomes distinctive in relation to the concept of the product,” and concluded that the distinctive element of the plaintiff’s product is (only) its name “Krtkův dort,” protected by a trade mark, and not the depiction of the finished cake in the shape of a spherical segment. Apart from the identical use of the cake’s shape on the packaging, the product packages differed in other elements (background color, font and text color, logo, and its placement) to such an extent that the average consumer is able to distinguish between them.³

2. Pitfalls of Protection Against Free-Riding on Reputation

While causing a likelihood of confusion protects against consumers being misled as to whom they are buying the product from, free-riding on reputation targets situations where a competitor exploits the reputation of another competitor’s product and takes advantage of that competitor’s efforts and investments – typically by imitating the appearance of another product to attract customers without having to invest in brand-building themselves.

In a landmark judgment in the MIVARDI case, the Supreme Court held that the mere similarity of products (in this case, fishing rod packaging) is not sufficient to conclude that free-riding has occurred.⁴ The plaintiff must prove that the defendant is actually benefiting from the plaintiff’s specific efforts and costs and thereby gaining a competitive advantage by not having to incur those costs itself. The court also emphasized that protection against free-riding is not unlimited in time; it applies only for a period sufficient for the competitor to capitalize on its market position so that the efforts and costs incurred are recouped through the market. In this context, according to the court, it must be taken into account how long the plaintiff has been placing its products on the market and whether products from other competitors that are similar in appearance or design are commonly available. These findings may therefore indicate that imitations of the original products no longer take advantage of the originals’ reputation.

The Didaktis case demonstrates that this is an argument the courts actually use: citing the aforementioned judgment, the court concluded that even if the defendant had violated the good morals of competition, it would most likely no longer constitute free-riding, since ten years had elapsed since the plaintiff’s textbooks were placed on the market.⁵ An interesting extension of this principle is the decision in the Duracell case, in which the courts found free-riding even in the case of a completely different type of product – an energy drink in packaging resembling an iconic battery. By using the same shape, design, and labeling, the defendant, according to the courts, evoked an association with the plaintiff’s high-quality product and, by referencing part of the plaintiff’s advertising slogan – that it “lasts a long time” – suggested a similar effect for its energy drink. Crucially, the courts explicitly concluded that while the consuming public would not confuse the battery and the drink, “they would nevertheless form a connection or association between them in their perception.” Free-riding is therefore not limited to direct competitors and does not require a likelihood of confusion; what matters is whether the imitator capitalizes on the original’s reputation.⁶

3. Protection Against Dupes Through Impermissible Comparative Advertising

A specific problem is posed by e-shops or social media accounts that offer perfumes as cheaper alternatives to luxury originals. These sellers generally do not attempt to imitate the appearance of the original perfumes. However, they may unlawfully take advantage of the reputation of the original perfumes by referring to the scent, characteristics, or experience associated with the original – these are therefore often “dupes.”

The way they refer to the original varies from case to case. It ranges from directly labeling their own perfume as a replica, imitation, or equivalent of the original, to claiming that their perfume is often mistaken for the original, to asserting that it is inspired by the original, has a similar composition, or is based on a world-famous brand. This is typically supported by displaying an image of the original perfume alongside an image of their own perfume, or by referencing customer experiences in which such an alternative is indistinguishable from the original. Alternatively, comparative lists of fragrances are also used, in which a generic perfume is assigned to each original perfume.

In general, it is permissible to compare products from different manufacturers in advertising, but only if all legal requirements for comparative advertising are cumulatively met. Among other things, such a comparison must not discredit or denigrate a competitor, its position, activities, or results, nor must it take unfair advantage of them; furthermore, it must not present goods or services as an imitation or replica of goods or services bearing a competitor’s trade mark or trade name.

The manner in which perfume dupes are presented may therefore be considered impermissible comparative advertising, as it explicitly or implicitly offers the goods as imitations of goods bearing a competitor’s trade mark, and sellers thereby typically take unfair advantage of the reputation of the original brands.

Although some listings include a disclaimer stating that the item is not an original, or a warning that customers should not confuse dupes with originals, these disclaimers cannot change the behavior of customers who are specifically looking for a way to buy an equivalent of the original at a lower price. However, if the customer were unfamiliar with the original and its good reputation, they would not want to buy a cheaper equivalent either. Regardless of any warning that the product is not an original, this method of sale is thus often conceptually based on taking advantage of the original’s reputation.

To the best of our knowledge, Czech courts have not yet specifically addressed cases involving perfume “dupes” that do not imitate the appearance, name, or logo of the original but merely capitalize on the association with the original. However, it is possible to draw inspiration from other cases. In the Green Ways case, the Supreme Court addressed the sale of so-called “green foods” – food supplements Barley and Chlorella  – in packaging similar to that of the plaintiff – and concluded that the defendant had engaged in free-riding on the plaintiff’s reputation, among other things, by including the plaintiff’s catalog with the goods it distributed, thereby attempting to create the impression of a connection between the parties. At the same time, the court concluded that the publication of a comparison table listing the prices of both competitors on different dates constituted impermissible comparative advertising: “Although the price advertisement contained accurate information, it was nonetheless misleading; the price comparison was not objective.”⁷ Similarly, in the case of perfume dupes, the systematic references to the original perfumes described above should be considered free-riding.

Czech courts would likely base their decision on the ruling in the L’Oréal case,⁸ in which the Court of Justice of the European Union addressed the sale of inexpensive perfumes whose bottles and boxes resembled luxury originals, and where comparison lists were sent to retailers alongside the imitations, identifying the original corresponding to each imitation. The Court of Justice held that, in the case at hand, the advertiser had violated the conditions for permissible comparative advertising described above. Specifically, according to the Court of Justice, the advertiser commits an infringement when it explicitly or implicitly mentions that the product is an imitation of a product bearing a well-known trade mark and takes advantage of the reputation associated with such a trade mark.

A certain balance is provided by the trade mark ruling in the Interflora case,⁹ according to which it is not possible to prohibit a competitor from promoting an alternative to the products of a trade mark proprietor with a reputation, provided that such promotion does not present those products as imitations and does not lead to the dilution, tarnishment, or interference with the functions of such a trade mark, i.e., the function of indicating the origin of goods, the advertising function, and the investment function. In a specific case, therefore, it will largely depend on the manner and circumstances of the presentation of competing products.

Conclusion

The doctrine of unfair competition represents a relatively effective and flexible tool for protection against imitations of products that seek to free-ride on the reputation of originals or mislead consumers regarding the origin of the offered product. Although success will depend to a large extent on the factual circumstances of each case, the cases cited here, as well as other previous cases, show that Czech courts are prepared to grant brand owners relatively broad protection. However, the area of perfume “dupes” remains an opportunity and a space for a shift in case law, as there has been virtually no case law from Czech courts on this issue to date. This results in lower predictability for luxury perfume manufacturers regarding possible actions against infringers. Nevertheless, the decisions of the Court of Justice remain a strong foundation, as they establish the conditions under which the owner of a well-known brand can be granted protection against dupes.

In the next installment of this series, we will examine other protective tools – non-conventional trade marks, copyright, and designs – and explain how they differ and when to use each one.

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1. Judgment of the Supreme Court dated August 31, 2020, Case No. 23 Cdo 2027/2020. ↩︎
2. Resolution of the Supreme Court dated May 29, 2024, Case No. 23 Cdo 2733/2023. ↩︎
3. Resolution of the Supreme Court dated October 29, 2013, Case No. 23 Cdo 2662/2012; the constitutional complaint was dismissed by a resolution of the Constitutional Court dated May 7, 2014, Case No. I. ÚS 125/14. ↩︎
4. Resolution of the Supreme Court dated April 28, 2020, Case No. 23 Cdo 1007/2019. ↩︎
5. Resolution of the Supreme Court dated August 31, 2010, Case No. 23 Cdo 4138/2008. ↩︎
6. Judgment of the High Court in Prague dated January 9, 2023, Ref. No. 1 Cmo 1/2022-143. ↩︎
7. Judgment of the Supreme Court dated October 22, 2014, Case No. 23 Cdo 2000/2013. ↩︎
8. Judgment of the Court of Justice dated June 18, 2009, L’Oréal and Others, C-487/07, EU:C:2009:378. ↩︎
9. Judgment of the Court of Justice dated September 22, 2011, Interflora and Interflora British Unit, C-323/09, EU:C:2011:604. ↩︎