'Dupes' in the crosshairs. Lawyers don't believe luxury brands will win

Exclusive bottles for hundreds of pounds versus perfumes for five quid from TikTok. Big perfume houses are losing out to a wave of cheap substitutes that smell almost identical, and the law gives them no real protection. Is this the end of the elite status of fragrances?

The growing popularity of perfume dupes – dupes inspired by famous scents – is changing the face of the market. Social media users are openly promoting cheap equivalents of luxury perfumes , boasting that a scent that is “virtually indistinguishable” can be bought for £5. According to research by Mintel, 50% of British consumers have already admitted to buying a duplicate fragrance , and another 18% are considering it.

While the tempting price and popularity among influencers arouse admiration, luxury brands struggle to hide their frustration.

"These companies are profiting off the work of artists. Creating a scent is an art that requires knowledge, talent and years of work. Now all of that can be copied and sold for next to nothing," Mireille Dagger, Broadfield's legal director, told The Observer.

Boss Scent / Unsplash, Felipepelaquim

Duplicate manufacturers are increasingly turning to advanced technology – gas chromatography combined with mass spectrometry (GCMS), which allows even the most complex fragrance composition to be broken down into individual molecules . As a result, it is possible to create a fragrance almost identical to the original – but for a fraction of the price and often using cheaper, less durable ingredients. The result? Hundreds of thousands of posts on TikTok with the hashtag #perfumedupe and an avalanche of cheap substitutes available online.

The problem with counterfeit fragrances is not just that they are cheap and popular. The biggest challenge is that... they are legal . For example , under British law, a fragrance cannot be registered as a trademark because it must be capable of being "graphically represented". This, however, in the case of scent - subjective and fleeting - is practically impossible.

In turn, patenting a perfume formula requires that the composition have an "inventive element" – something that is difficult to attribute to complex but nonetheless artistic blends of fragrance notes .

While manufacturers can protect the name, logo or shape of the bottle, the essence itself – the heart of the perfume – cannot be formally protected.

How is the case in Poland? Since March 2019, in accordance with the amendment to the Industrial Property Law , the requirement for a trademark to be graphically presentable has been abolished. Theoretically, this allows the registration of unconventional marks , such as scents . However , in practice, registering a scent as a trademark is very difficult . It requires the mark to be presented in a clear, precise and objective manner, which in the case of a scent is problematic due to its subjective nature and the lack of appropriate technologies for an unambiguous description. As the Sieckmann case shows, a description of the scent, its sample and chemical description alone are not enough. In turn, in Polish copyright law, scents are not unequivocally recognized as works.

The phenomenon is part of a broader social trend . Younger generations, raised in times of economic uncertainty, feel no qualms about reaching for counterfeits – on the contrary, buying a good imitation is now considered a sign of cleverness.

- Copying used to be considered shameful, now it's considered clever and fashionable - says Dionne Officer from the research company Mintel.

While the luxury industry is trying to fight back – from lawsuits to educational campaigns – lawyers agree that under the current law, it is "almost a lost cause".