Type “dupe” followed by the name of a well-known perfume and dozens of listings appear, promising a similar olfactory experience for a fraction of the price. The market is large and largely formal: it involves manufacturers and products registered with Anvisa, Brazil’s health regulatory agency, alongside distributors, retailers and content creators. Precisely because it is a legitimate market, companies operating in it need to understand where the boundary lies between permitted inspiration and infringement of third-party rights.

Dupes, contratipos and what is actually at stake

Dupe, short for duplicate, is the term popularized on social media to describe a product designed to deliver an experience similar to that of another, usually more expensive one. In the Brazilian perfume market, the term contratipo is also widely used to describe a fragrance developed with an olfactory profile similar to another, but sold as an independent product.

The first misconception to clear up is treating a dupe as a synonym for counterfeiting.

Counterfeiting involves the improper reproduction or imitation of a registered trademark and may also extend to the sale of products that unlawfully bear that mark, conduct addressed in articles 189 and 190 of the Brazilian Industrial Property Law (Law No. 9.279/96).

A contratipo, by contrast, may be a product in its own right, with its own brand, packaging and commercial origin, even though its fragrance was developed to evoke another already on the market.

To understand where legal risk begins, it helps to separate a perfume into three layers: the fragrance, the visual presentation and the way the product is advertised.

First layer: the fragrance

Article 122 of the Industrial Property Law provides that visually perceptible distinctive signs may be registered as trademarks. Because a scent is not visually perceptible, olfactory marks cannot be registered in Brazil under the legislation as it currently stands.

Nor does Brazilian law offer any settled form of protection granting a company exclusivity over a given scent merely because it was the first to bring it to market.

This does not mean that everything surrounding the creation of a perfume is unprotected.

A formula, certain technical information or manufacturing processes may be protected, depending on the circumstances, through mechanisms such as trade secrets and, in specific situations, through industrial property rights. Trade secret protection prevents the unlawful acquisition or use of confidential information, but does not in itself prevent a competitor from studying a product legitimately acquired on the market.

In practical terms, reproducing a similar olfactory profile alone does not automatically amount to counterfeiting. Legal risk increases when that similarity is accompanied by reproduction of the visual identity, the trademark or the commercial reputation of the reference product.

Second layer: bottle, label and trade dress

The picture changes when it comes to the presentation of the perfume.

Trade dress, known in Brazil as conjunto-imagem, is the combination of elements that makes a product recognizable to consumers: the shape of the bottle, the cap, colors, typography, the graphic layout of the label, the packaging and other presentation features.

Trade dress has no standalone registration at the INPI, Brazil’s National Institute of Industrial Property, but it may be protected under the rules on unfair competition, particularly where the presentation of a product is capable of causing confusion or improper association with another.

Individual elements of that overall look may also carry protection of their own. A bottle may be protected as an industrial design or as a three-dimensional trademark, while graphic elements may form part of a figurative or composite trademark.

The Jackzinho vs. Jack Daniel’s case illustrates this type of dispute. In a preliminary decision, a São Paulo state court found there were sufficient grounds to halt the contested use while the case was examined.

The decisive factor is not a color, a word or a shape considered in isolation, but the impression created by the whole.

A contratipo with its own name, bottle, label and visual identity significantly reduces the risk of conflict. A product that approaches not only the fragrance but also the bottle, the colors, the typography or other characteristic elements of the reference brand moves into a far riskier area.

Third layer: name and advertising

This is the layer that generates most disputes involving contratipos.

Developing a fragrance with a similar olfactory profile is one thing. Using the reference product’s trademark commercially to promote that fragrance is another.

The Industrial Property Law protects trademark owners against improper use of their marks, while also setting out situations in which the mere citation of a mark cannot be prevented. This means that mentioning a third-party trademark is not automatically unlawful, but the context and purpose of that use are decisive.

In advertising and sales, the analysis becomes stricter.

Where a third-party mark is used in a way capable of confusing consumers, creating an improper association, unfairly exploiting its reputation or diverting customers, both trademark infringement and unfair competition issues may arise.

For that reason, phrases such as “identical to perfume X”, “a copy of perfume Y”, or presentations that turn the famous brand into the main selling argument, warrant particular attention.

Equivalence charts and the limits of comparative advertising

One of the most sensitive practices in this market is the equivalence chart, which states, for example, that “no. 42 corresponds to perfume X”.

A chart of this kind is not automatically unlawful, but it creates an explicit commercial link between the seller’s own product and a third-party brand. How it is presented therefore matters a great deal.

The more the communication presents the product as a copy or replica of the original, or uses the prestige of the reference brand as the principal means of selling the contratipo, the greater the legal exposure tends to be.

There is a well-known international precedent in this sector. In L’Oréal v. Bellure (C-487/07), decided by the Court of Justice of the European Union in 2009, the dispute concerned precisely the use of comparison lists presenting certain perfumes as imitations of well-known fragrances.

The ruling is not binding on Brazilian courts, but it shows how this type of communication may be interpreted once the comparison stops simply informing consumers and begins to exploit a brand’s reputation commercially.

In Brazil, comparative advertising is permitted under the Brazilian Code of Advertising Self-Regulation, administered by CONAR, the Brazilian National Advertising Self-Regulation Council, provided it meets criteria such as objectivity, verifiability, absence of confusion between products, and respect for the reputation of the brands involved.

With perfumes, claims of absolute equivalence call for caution precisely because olfactory perception carries a subjective element.

Searches for “dupe + brand”: using a trademark without showing it

There is a further form of association that may appear neither on the label nor in the visible text of an advertisement.

Digital advertising platforms allow advertisers to select keywords that determine when their ads are displayed. Technically, it is possible to select a competitor’s registered trademark as a keyword.

Someone searching for a well-known perfume may then be served, as a sponsored result, the advertisement of a company selling a contratipo, even though the searched brand never appears in the final text of the ad.

This practice has already been examined by the Superior Court of Justice (STJ), Brazil’s highest court for non-constitutional matters.

In Special Appeal (REsp) No. 1,937,989/SP, decided by the STJ’s Fourth Panel in 2022, the court recognized that unfair competition may be established where a company uses a competitor’s registered trademark as a keyword to promote its own sponsored links. The subject is examined in more detail in the article on the use of registered trademarks as keywords in Google Ads.

In a further ruling in 2024, the STJ returned to the issue and also examined liability arising from the way such sponsored links are commercialized.

This makes it particularly risky to buy a competitor’s brand name as a keyword purely to intercept consumers who are searching for that competitor’s products.

Where to draw the line

For companies manufacturing or distributing contratipos:

• Registering a trademark of your own and building an independent identity is among the most effective ways to reduce risk.
• The bottle, label, colors and remaining visual elements should have an identity of their own, avoiding excessive proximity to the trade dress of the reference product.
• Paid media campaigns should avoid using competitors’ trademarks as keywords to direct consumers to their own products.
• Equivalence charts and other communications referring to third-party brands deserve careful review, especially where they present the product as a copy, replica or direct substitute for the original.
• Similarity of fragrance, taken alone, is a separate question from the commercial use of the reference product’s trademark or visual identity.

For brand owners and distributors whose products are used as references:

• Monitoring of marketplaces and social media may cover expressions such as “dupe”, “contratipo”, “inspired by” and other forms of association with the brand.
• Three-dimensional trademark and industrial design registrations can broaden protection for characteristic visual elements.
• Before sending a cease-and-desist letter or initiating court proceedings, it is important to distinguish mere olfactory similarity from situations that genuinely involve improper trademark use, reproduction of trade dress, confusion, improper association or diversion of customers.

That distinction matters because the law does not shield a company from every form of competition or inspiration. It protects specific trademarks, creations and assets, and it also curbs unfair means of competing.

How Ricci can help

Cases involving dupes and contratipos are usually decided on the details: a word in an advertisement, the appearance of a bottle, an equivalence chart, a keyword purchased on an advertising platform, or the way products are presented side by side.

Our team works on the registration and management of trademark portfolios, the protection of trade dress, the monitoring of improper use on digital platforms, and extrajudicial and court measures relating to industrial property and unfair competition. We regularly advise foreign companies on how these rules apply to products manufactured, imported or marketed in Brazil.

If your company manufactures, distributes or serves as a reference in this market, contact the team at Ricci Intellectual Property to assess the right strategy for your case.