Somewhere in the evidence in the Aldi baby puffs case is a note about a draft design for Aldi’s MAMIA snack range. It says the packaging is “too close to our benchmark”.
That benchmark was Little Bellies. Aldi’s designers had been handed the Little Bellies packs, told to “follow the architecture” of them, and came up with something a bit too similar. So they pulled it back. Years later, that same back-and-forth helped the Full Federal Court decide that Aldi had copied the Little Bellies artwork, and that it had done so deliberately enough to pay extra damages.
Read alongside the High Court’s decision in the “instant Botox® alternative” case, it gives a fairly clear picture of where Australian law draws the line on dupes. That matters for supermarket own brands, and it matters just as much for one of the fastest-growing dupe categories right now: perfume.
Dupe cases are won and lost on the evidence
While the headlines focused on Aldi losing, the details of how both sides’ packaging was made, and what each side could prove about it, explain why Aldi lost on some packs and won on others.
To prove that someone copied your packaging artwork, you generally need to show two things. First, that they actually used your design when making theirs. Second, that what they ended up with takes a substantial part of your design.
On the first point, Aldi’s own documents did most of the work. The Little Bellies packs had been given to Aldi’s design agency as the “benchmark”. A presentation to Aldi had a page headed “BENCHMARK” showing six of them. The agency was told to “follow the architecture”. And when one draft came back “too close”, it was adjusted to look slightly less similar. The trial judge concluded that the aim was packaging that looked like Little Bellies, “albeit not too closely, because that would infringe the law”. The Full Court suggested the process was better described as mimicking than copying.
That may sound like a helpful distinction for Aldi, but it did not help much. Courts have long recognised that where there is evidence someone worked from the original, the differences they added can look like an attempt to cover their tracks. In other words, deliberately making a design less similar, and writing that down, can count against you.
The Full Court was blunt about it when it upheld the extra damages. Aldi “could have used any packaging of its own design, but chose to emulate” the Little Bellies packaging, and a business that chooses to work that way “runs the risk that infringement will lead to additional damages”.
Aldi still won on six of its eleven packs
This is the part of the case that rarely makes the headlines, but it is still an important one to be aware of. Little Bellies’ owner claimed that 11 Aldi packs infringed, and the Full Court found that five out of the 11 did. Aldi won on the other six, even though the same benchmarking process sat behind all of them.
Part of the reason was how the case was run. Little Bellies argued that its whole range had a shared “look and feel” and that Aldi had taken it across the board. The Court was not persuaded by that approach. Copyright protects specific artwork, so the question has to be answered pack by pack. At one point, the judges asked for a clear explanation, for each product, of exactly what had been copied and from where. When they compared the packs side by side themselves, the answer changed from one pack to the next.
The other reason was originality. Copyright protects original creative choices, not hard work, and the more ordinary an element is, the more of it has to be taken before it counts. A plain white background on its own was described as “unremarkable”. Aldi argued that several features of the Little Bellies packaging could be found on earlier products or had come from stock image libraries. It also pointed out that the designer had described the creative process but had not produced any draft drawings to show it.
The Botox case: how you mention a competitor matters as much as whether you do
The second case is about words rather than artwork. A skincare company sold an anti-wrinkle cream called Inhibox under its FREEZEFRAME brand, and described it on the packaging and website as an “instant Botox® alternative”. Allergan, which owns the BOTOX trade mark, sued for trade mark infringement and misleading conduct. It won in the Full Federal Court. In 2023, the High Court overturned that decision and found in the skincare company’s favour on every issue.
A few details in the judgment are particularly useful for anyone selling a dupe:
- Intention did not decide the trade mark question: Whether a phrase is being used as a brand is judged by how it objectively appears to customers, not by what the business hoped to achieve. What helped the skincare company was the way the packaging looked. FREEZEFRAME and INHIBOX were stylised and presented like brands. The phrase “instant Botox® alternative” was not. The High Court even noted that the phrase appeared in inconsistent sizes and fonts across the packaging and website, which pointed away from it being used as a brand. In short, the competitor’s name read as a description, and the company’s own names read as the brands.
- The consumer law claim was narrowly avoided: The question was whether “alternative” told customers the cream’s effects would last as long as a Botox injection. The skincare company did not dispute that such a claim would have been misleading, because the evidence did not show its cream worked that long. It won because the court found reasonable customers would not have read the packaging that way. The packaging itself said the effect “lasts for hours”, and a reasonable customer was unlikely to think a relatively cheap cream bought from a pharmacy would match an injection given by a health professional. In other words, the surrounding words and the obvious differences between the products did a lot of the work.
- Fame alone did not give BOTOX a wider reach: The High Court confirmed that the reputation of a well-known brand is not taken into account when deciding whether a rival’s mark is “deceptively similar” for ordinary trade mark infringement. PROTOX was found not to be deceptively similar to BOTOX, partly because it almost always appeared next to the FREEZEFRAME brand.
Taken together, the two cases show that dupe disputes are usually decided by what you can show, not by how similar the products look. For packaging, that means the copier’s brief and feedback, and the brand owner’s design records. For comparison claims, it means what your packaging and marketing say around the competitor’s name, and whether you can back it up.
Perfume dupes: what can and cannot be protected
Perfume dupes are everywhere at the moment, from budget body mists to “inspired by” fragrance houses that build their whole range around designer scents. For both sides, it helps to start with what the law actually protects.
The scent itself is generally the hardest thing to protect. A smell is not usually protected by copyright, the formula is usually only protected while it stays a trade secret, and scent trade marks are possible in Australia but rarely registered. That is a big part of why fragrance dupes have flourished. Recreating a scent profile is, in many cases, not unlawful on its own.
That said, the real risk tends to sit in four other places:
- The name: Putting a designer brand’s name on your bottle, or using a name that is deceptively similar to it, is likely to be trade mark infringement, and may cross into counterfeiting. Referring to the original in a comparison is different, and the Botox case shows that a clearly descriptive reference, sitting next to your own prominent brand, is less likely to be treated as trade mark use.
- The bottle and box: Bottle shapes, caps, labels and box artwork can be protected by registered designs, shape trade marks and copyright in the artwork. The Aldi case is a reminder that copying the architecture of someone else’s packaging, even with changes, can be enough to infringe.
- The claims: “Smells identical”, “same oils”, “made in the same factory” and “lasts all day” are factual claims. If you cannot back them up, they may be misleading under the Australian Consumer Law. “Inspired by” is likely to be safer than “the same as”, but the overall impression still matters.
- Your customers and influencers: Many dupe brands do not make the comparison themselves, but their customers can, in reviews and videos. In the United States, Sol de Janeiro has sued Australian beauty brand MCoBeauty, alleging copied packaging and misleading claims that its body mists smell “exactly the same”, including through influencer posts and reviews that MCoBeauty allegedly liked, commented on or promoted. Those are only allegations, and the case is being decided under US law. But Australian courts and the ACCC can also look at content a business adopts or amplifies, so the same risk may apply here.
Example: The fragrance launch (illustrative example)
Consider a small Australian fragrance business that launches six scents, each named with a number and a mood, such as “No. 4 Velvet Oud”. Its website has a “smells like” chart listing a designer fragrance next to each product. The bottles are plain, with the business’s own logo large on the front. So far, its position looks reasonably strong. Then the marketing team starts reposting TikToks that say “literally identical” and “you can’t tell the difference”, and a supplier offers a bottle with a cap almost identical to a famous designer cap. Those two decisions may create more risk than the entire comparison chart.
The safer path is to keep comparisons descriptive, keep the business’s own brand dominant, test and keep records supporting any performance claims, and avoid resharing content that goes further than the business itself could say.
What this means for you
If you own the brand, your design records are your rights
It is easy to assume your packaging is protected because it is distinctive and customers recognise it. The Aldi case suggests the protection depends heavily on what you can prove.
That means keeping the draft concepts, dated design files and the brief you gave your designer, not just the final artwork. It helps to know which parts of your design are your own and which are common in your category or came from stock images, because those are the parts a competitor is likely to say were never original. Further, if an agency or freelancer created your artwork, make sure you have a written agreement transferring the copyright to you. In the Aldi case, even who owned the artwork and who could sue were argued about at trial.
For fragrance and beauty brands in particular, it is also worth considering registered designs for distinctive bottles and caps before launch. It is safest to file a registered design before a distinctive bottle or cap is shown publicly. A 12-month grace period may apply, but relying on it carries risk, and once a dupe is on the shelf it may be too late to start.
If you do take action, be specific. Saying a competitor has taken the “feel” of your range is likely to be a harder case to win than pointing to one of your packs, one of theirs, and the exact features that were copied.
If you make the look-alike, your brief can be your evidence
For retailers building their own brand ranges, the lesson is about process. The instruction to “follow the architecture”, the “BENCHMARK” page and the “too close” feedback were everyday working documents when they were written. In court, they became the heart of the case against Aldi. It is also worth noting that the agency’s work was treated as Aldi’s. Handing the design to an agency does not hand over the risk.
Example: Two briefs, one shelf
Consider a pet supplies chain that asks an agency to design an own-brand treat range. One version of the brief says “our customers love Brand X, make ours feel familiar” and attaches photos of Brand X’s packs. Another says “build the range around our own colours and mascot, and make the product and price the hero” and attaches the chain’s style guide. Both could end up with packs that sit comfortably next to Brand X on the shelf. Only one is likely to end up as a key document in a copyright claim.
If you work with design agencies, it may also be worth checking that your agreements require original work, include a promise that the designs do not copy anyone else’s, and allow you to recover your losses if they do.
Using AI to create branding or packaging
AI image and text tools can produce a logo, label or product name in seconds, and it is easy to assume that what comes out is new and free to use. That may not be the case. These tools learn from huge amounts of existing material, including other businesses’ branding, so their output can sometimes closely resemble an existing logo, pack design or product name without you realising it.
There are a few reasons to treat AI-generated branding as a starting point rather than a finished product.
- It may look like someone else’s: An AI tool does not check whether its output is similar to an existing trade mark, registered design or artwork. If the result resembles another brand, the risk sits with your business, not the tool.
- You may not own it: In Australia, copyright generally depends on human authorship. Artwork created mainly by an AI tool, with little human creative input, may not be protected by copyright at all. That could make it harder to stop a competitor from copying your packaging later. The tool’s own terms of use may also limit how you can use the output, so they are worth reading.
- Your prompts can become evidence: The Aldi case turned on design briefs and feedback. A prompt such as “create packaging like Brand X but different” is a modern version of the same document, and it may be just as revealing if a dispute ever arises.
- AI is not a legal check: Asking an AI tool whether a name or design is “safe to use” is unlikely to give you a reliable answer. It may not have access to current trade mark records, and it can sound confident even when it is wrong.
Before you use any AI-generated name, logo or packaging, do your own research. Search IP Australia’s trade mark and design databases, check business names and domain names, and look at what competitors in your category are already using. Ideally, have a designer refine the concept so there is genuine human creative input, and keep records of how the final design was developed. For important brand assets, consider getting advice before launch, while changes are still quick and inexpensive.
The same applies to AI-written marketing. If an AI tool drafts a product description saying your perfume “smells identical” to a designer fragrance, that claim is still yours, and you may need to be able to back it up.
Practical guidance before you launch, or before you send a letter
Here are some tips for each stage of your journey:
- Before launching a dupe or look-alike: Write your design brief around your own brand, not someone else’s. Make your brand name the most prominent thing on the pack. Check whether the product you are referencing has registered trade marks or designs, which you can search on IP Australia’s database. Keep any comparison descriptive, and keep test results or other evidence for every performance claim. If you are unsure, get the packaging and marketing reviewed before it goes to print, when changes are cheapest.
- Before relying on customer content: Set a simple rule for your social media team about what they can reshare, pin, reply to or boost. If a post says something you could not say yourself, it is safer to leave it alone.
- If you think your product has been copied: Buy the competing product and keep the receipt. Take dated screenshots of listings, ads and social posts. Note any customer confusion, such as messages or reviews from people who thought the products were connected. Gather your design records and ownership documents. Then get advice before you post online or contact the other business, because a letter that overstates your rights can, in some circumstances, expose you to a claim for unjustified threats.
- If you receive a letter of demand: It is usually unwise to ignore it, or to keep selling as usual while you decide what to do. In the Aldi case, continuing to sell for months after receiving letters of demand was one of the reasons extra damages were awarded. Keep your design files and communications, as deleting them can make things worse, and get advice early about whether a pause, a redesign or a negotiated outcome makes sense.
Most dupe and look-alike issues are far easier, and cheaper, to deal with before a product launches or before a dispute escalates. Our intellectual property team can review your packaging, product names and marketing claims before they go live, help you secure ownership of your brand assets, and give you a clear view of where you stand if a look-alike appears or a letter arrives. Where an issue has already come up, we focus on practical options, such as a redesign, revised marketing or a negotiated outcome, that let you get back to running your business. To talk through your situation, speak with our team on 1300 003 077 or at enquiry@prosperlaw.com.au.
Your next step
Whichever side you are on, a good first step is the same. Pull together your design records, and read your briefs, product descriptions and any content you have reshared as if a judge were reading them. There is generally no safe percentage of change and no simple “looks different enough” test. The answer depends on what was used, what was original, what you said about it and what you can prove.
In practice, when a client first asks whether their packaging can be protected, they can usually find the final artwork but not the documents that explain how it was created. The missing pieces are often the early drafts, the original design brief and a signed agreement confirming who owns the copyright. Those records may seem incidental at the time, but they can make the difference between having a distinctive pack and being able to enforce rights in it.
For help with your packaging, product names or marketing claims, our intellectual property and commercial team is here to help.
Frequently Asked Questions
Is it legal to sell a dupe in Australia?
Often, yes. Making a product that competes with or resembles another one is not illegal in itself. A dupe may become a problem if it copies a substantial part of protected artwork, uses a registered trade mark or design without permission, or misleads shoppers about who made it or how it compares.
Are perfume dupes legal in Australia?
Recreating a scent is generally not unlawful on its own, because smells are difficult to protect. The legal risk usually comes from the name, the bottle and packaging, and claims such as “smells identical” that cannot be backed up.
Can I say my perfume is "inspired by" a designer fragrance?
It may be possible, if the reference is accurate, clearly descriptive and your own brand is the obvious source of the product. The overall impression still matters, so wording that suggests the products are the same, or connected, may be misleading.
Does changing enough elements make a look-alike safe?
Not necessarily. The Full Federal Court indicated that the focus is on what was taken from the original, rather than on the differences added in the copy. Two packs may look quite different overall and still infringe.
What evidence do I need to protect my packaging?
Usually, proof that you own the copyright, such as a written transfer from the designer, and records of how the design was created, such as drafts, briefs and dated files. Evidence of which features are original, rather than common in your category, can also be important.
Can I use an AI-generated logo or product name for my business?
Possibly, but it is worth doing your own checks first. AI-generated branding can resemble existing brands, and it may not be protected by copyright if there was little human creative input. Searching IP Australia’s databases and having a designer refine the concept can reduce the risk.
This article is general information only and does not constitute legal advice. It reflects the law as at 4 November 2026. You should obtain advice specific to your circumstances before acting.
About the Author
Farrah Motley
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