Introduction
Starting from Cleopatra’s kohl-lined eyes all the way to the skilfully highlighted faces of women on Instagram today, the beauty industry has proved to be rather durable and adaptive. It should be pointed out that cosmetics have always played not only the roles of beautifiers but also indicators of a person’s status, his mood, and desire. This is a very interesting history of beauty practices and products which has developed with time influencing the cultures and trends of the world. The beauty industry in India is at the moment considered to be rapidly growing with young and innovative firms like Nykaa, SUGAR Cosmetics, Plum Goodness, mCaffeine, etc. These companies have been able to reach out for a large market since they have been able to cover a wide market niche that deals with beauty products and accessories. However, the high cost of premium beauty products has led to the emergence of a parallel market beauty dupes. These cheaper options are look-alikes of the expensive ones, and are available to offer the same functionalities at relatively low prices. Even though this trend makes beauty more accessible to people and can be seen as disrupting the society in a positive way, it brings up major IP issues and questions the definition of what is allowed in terms of copying in the beauty industry.
The Rise and Impact of Beauty Dupes
In 2018, beauty influencer James Charles launched an extremely successful eyeshadow palette costing $39, which was highly acclaimed by the beauty community. And then, Wet n Wild came out with a palette that looked almost identical to it, for $25, thus starting a huge discourse on beauty dupes and their morality and legalities. While counterfeits are produced with the purpose of deceiving consumers with fake trademarks, and knockoffs are products that mimic the look of the original product, dupe products are basically similar products offered at a cheaper price, but with the sellers or manufacturers not intending to deceive consumers. It becomes important to differentiate between the two when studying the workings of the beauty dupe market.
[Image Sources: Shutterstock]
Thus, the increase in the use of dupes is associated with cost and availability factors. To many consumers, dupes offer a chance to feel the glamour of premium makeup products, as well as the brand’s recognition, without having to pay for it. It has made beauty more accessible to everyone and with this, people from different classes can afford good brands. Nevertheless, the existence of dupes is not without problems for the original brands as well. Firms that dedicate resources on research and development of new products, advertisement, and creating a distinct image on their products end up facing competition from cheaper imitations of the products they develop. This not only reduces its revenues but also weakens the brand and reduces the motivation to create new technologies.
The Conflict Between Creators and Copycats
Original brands have argued that the existence of beauty dupes compromises their massive capital that they put into the creation of quality beauty products. They stress that their costs related to the purchase of high-quality raw materials, innovative mixtures, and unique, easily recognizable packaging are unprofitable due to the appearance of cheap fakes. These brands insist that, the reproductions, made mostly with inferior quality, can lower the standards of the authentic products and thus affect the value of the originals. Also, they give serious health risks; they give examples where beauty products which were counterfeit had been found to contain hazardous ingredients. For instance, there has been a report of fake lip kits that have been produced to look like those of Kylie Jenner; these fake products contain substances. This also have dangerous impact on the health of the consumers while at the same time eroding the reputation and trust that consumers have in beauty brands.
On the other hand, beauty dupes have many benefits for the customers and potential start-ups, though. As for the consumers, dupes allow for enjoying the most sought-after and beloved beauty items while saving money. This democratization of beauty enables people to try new styles and products and do not put pressure on their wallets. As for the beauty product, many budding businesses people have realized that since it is a highly competitive market, creating and selling dupes is financially less risky for them, especially those who started with little capital. The increase in dupes’ usage can be attributed to the social media since most beauty influencers and e-commerce stores advertise these products. Affiliate marketers tend to present dupes as good bargains that appeal to so many people who want to look like they spent a lot of money when in fact they did not. Retail websites, in the same way, ensure the availability of these products to a global audience, thus increasing the demand for beauty dupes.
IP &Beauty Industry
The beauty industry has various forms of protection depending on the aspect that needs protection through different types of intellectual property protection. Each of these instruments: patents, copyrights and trademarks is useful in protecting distinct aspect of beauty products and brands. However, such protections are not without some restrictions especially regarding the matter of beauty dupes.
Patents are meant to preserve special concoctions and inventions by paying specific rights to the patent proprietor. In order to get a patent for the product, one has to prove its novelty and non-obviousness, which can turn out to be a very difficult task for the cosmetic products, since they usually contain the same ingredients or slight modifications of the previous formulas. The process of filing a patent application is time-consuming and expensive, which usually takes several years and a large amount of money. This may work against the dynamic cycle of beauty products since such products must get to the market as soon as possible to capture the current trends. Therefore, by the time a patent is granted, the trend may have shifted hence the protection is not as useful as it could be. Also, the line of incremental innovations common to the cosmetics industry may not satisfy the strict criteria of patentability, which adds to the difficulties faced by the beauty brands.
Copyright protection is conferred on any work which can be regarded as an author’s creation like the artwork on packs and on promotional products. However, the application of copyrights to beauty products cannot be as easily defined. For example, when designs are printed on powders or other cosmetic products, it is mostly considered a transient type and cannot be easily categorized as a preserved art piece. In Islestarr Holdings Ltd. v. Aldi Stores Ltd., the legal application of the copyright law in relation to cosmetics designs was underlined. Thus, the court had to determine whether the decorations on a cosmetic product could be protected under copyright, as the elements are temporary and partly serve their function.
Trademark being one of the forms of intellectual property rights, safeguard brand names, logos and other symbols which help to differentiate goods in the market. However, to protect the trademark, the brand has to establish confusion, which can be quite challenging especially when dealing with beauty dupes. The consumers deliberately buy dupes as cheaper imitations of luxury goods, therefore, proving that they have been given a false impression cannot be easily done. The case of Tatcha, LLC v. Too Faced Cosmetics LLC depicts these challenges because proving trademark infringement necessitated proving confusion concerning the origin of the products. This is because most consumers have knowledge on the differences and can make informed decisions; thus, it becomes difficult for trademark holders to provide such confusion.
Conclusion
The beauty industry has to tread carefully on the issues of IP to ensure it meets the needs of innovation as well as the consumer’s pocket. Original brands are always developing new strategies to come up with new brands that will differentiate them in the market. Nonetheless, the major drawback of these innovations is that the protect them from being copied by competitors is very hard. Social networks can be used as a tool for developing close-knit fan communities and presenting the distinctive features of their products. By so doing, they can guarantee their customers that their products are original, hence, distinguishing themselves from the fake or imitation products. Another tool is influencer marketing; influencers can also support the brand’s message and demonstrate the relevance of using non-counterfeit products. These strategies can be very useful in the industry especially when everyone is imitating the products of others.
Consumers are on the central stage in this process and their awareness of the safety of products is crucial. Some of the dupes might not be through the same tests as the original product which might be dangerous for your health. Thus, increasing the understanding of consumers about the need to purchase original products will go a long way in helping the consumers. Furthermore, it becomes crucial for the authorities to intervene and control the market since there is no fairness in the market. There should be laws that would help to shield the consumers and the authentic brands from the following negative impacts of the counterfeit products. It is crucial to promote health innovation while at the same time ensuring consumers are protected adequately through the right policy interventions.
Author: Soumili Kundu, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at Khurana & Khurana, Advocates and IP Attorney.
References
- https://inc42.com/reports/d2c-beauty-and-personal-care-brands-in-india-customer-perception-report-2021/
- https://www.psychologytoday.com/us/blog/habits-not-hacks/201412/the-surprising-power-beautiful-face
- https://www.dailypioneer.com/2022/sunday-edition/indian-beauty-market–in-for-a-makeover.html
- https://beautymatter.com/articles/the-elevation-and-pitfalls-of-the-dupe-market
- https://www.thelexingtonline.com/blog/2019/1/29/james-charles-palette-worth-the-hype
- https://www.buzzfeednews.com/article/laurenstrapagiel/wet-n-wild-james-charles-palette
- https://blogs.loc.gov/law/2020/11/makeup-dupes-the-law-of-cosmetics-and-trademarks/