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Dupes in the fragrance industry
02.04.2025
What is a “dupe”?
In recent years, there has been a rise in the sale of products that imitate branded items, commonly referred to as “dupes.”
A dupe, according to Marie Léger, a journalist for VOGUE magazine, in an article from September 8, 2023, is “…a product that looks like a designer item or a high-quality product but that is sold at a significantly lower price. The word ‘dupe’ derives from ‘Duplicate,’ meaning a copy or imitation.”
This market is expanding rapidly and may have a significant impact on the trade of authentic products, riding on the coattails of major brands that consistently invest heavily in advertising and promotional expenses.
The strategy behind dupes is clever, as these products mimic the characteristics of well-known items without directly acknowledging the similarities.
Influencers often promote dupes, recommending the purchase of imitations at much lower prices.
The difference from previous “comparison charts” is that the manufacturer of the disputed product does not provide its own list of equivalent products.
This practice of selling dupes is particularly widespread in the perfume industry.
How can one protect themselves?
In terms of case law and applicable rules, the Paris Court of Appeal protected the fragrance of a perfume under copyright in a decision dated February 14, 2007 (RG n°06/09813), stating: “ that the fragrance marketed under the name ‘LE MÂLE,’ recognizable by its olfactory architecture, must be protected under copyright.”
In this case, 80% of the components were found to be the same in both perfumes (click here).
The olfactory similarities were confirmed through chromatographic analysis.
However, the French Court of Cassation, in a ruling dated July 1, 2008 (RG n°07-13.952), overturned this decision from the Paris Court of Appeal, stating: “Considering that, by ruling in this way, the fragrance of a perfume, resulting from the implementation of expertise, does not constitute the creation of a form of expression that can benefit from protection as a work of the mind, the Court of Appeal violated the aforementioned texts…” (click here).
It follows that the French Court of Cassation considers that a perfume’s fragrance is a product of expertise rather than a work eligible for copyright protection.
This position is debatable, as the individual components of a perfume are easily identifiable and, as such, protectable under copyright. Creating a perfume is both a technical and artistic process.
This approach is especially questionable, given that a perfume is considered as a work of the mind, as shown by the profession of perfurmers, the unique olfactory nature of each fragrance, and the success of various renowned perfumes.
In an article published in Propriété Industrielle magazine (July-August 2024, pages 7-8), Professor LE STANC writes: “It should be added that in the specific case of perfumes, ‘dupes’—which simply reproduce famous fragrances without clearly referencing the original or imitating its packaging—can do so freely.”
However, by qualifying the creation of a perfume as a matter of know-how, the Court of Cassation implicitly allows for the protection of this expertise.
Know-how is open to misuse, and developing it is a long-term process.
For instance, in a ruling dated February 16, 2022 (n° 20-13.542), the Commercial Chamber of the French Court of Cassation stated: “An action for economic parasitism based on Article 1382, now 1240 of the Civil Code, which requires the existence of a fault by one party to the detriment of another, can be pursued regardless of the legal status or activity of the parties, as long as the defendant rides on the coattails of the victim, unfairly benefiting from their efforts, expertise, reputation, or investments.”
This could very well apply to a company selling dupes, which could be sanctioned for misappropriating the know-how of another company.
It is worth noting that the market for dupes is growing significantly at the expense of well-known brands investing substantial amounts in the development and commercialization of perfumes.
It follows that civil liability may be a valid ground to target the dupe market.
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