Sniffing Out Loopholes: Reasons Behind The Elusiveness Of The "Inspired By" Perfume Dupe For Indian Trademark Law

Abstract

The rise of dupe culture has fundamentally changed how consumers think about luxury goods. In the context of social media, online shopping sites, and even online influencers, an entire new generation of consumers and merchants have embraced the basic concept that as long as a product does not feature a counterfeit logo or imitation packaging, but rather states that it was "inspired by" the original, then the product can be marketed without any issues. It is obvious. Contrary to fake products, dupes do not hide the fact that they are alternatives. Buyers are seldom in doubt that they are buying the original product. Transparency, therefore, is often assumed to place these products beyond the reach of trademark law. However, the legal basis and origin of this assumption is quite precarious. Although the lack of deception will probably minimize the risk of trademark infringement, it cannot settle the question of trademark dilution, unfair competition, passing off, and using the reputation of the other brand. In other words, honesty about imitation is not always synonymous with legality. The legal response to such cases becomes highly complicated when companies use the identity, reputation and success of luxury brands in marketing products that replicate their commercial success and name but not the trademarks. It has never been more clear than in the case of the booming dupe perfume market in India. Dupes are marketed with independent brand labels, but the goods are advertised as "inspired by" famous designer perfumes, providing customers with an olfactory experience at a fraction of the cost. This sector has become one of the most rapidly growing segments of the Indian personal care and beauty e- commerce industry operating on the Internet. However, despite the economic importance of the dupe business, no Indian court decision has ever analysed whether marketing of this kind constitutes trademark infringement, passing off, or some other unfair competitive activity. The lack of court cases has usually been treated as an informal approval of the practice. This Article argues that such a conclusion is misplaced. In addition to not reflecting legal certainty, the absence of judicial pronouncements can be seen as the result of three structural features of Indian intellectual property laws working together at once. Firstly, the requirement for graphical representation in Section 2(1)(zb) of the Trade Marks Act, 1999 made it practically impossible to register scents as trademarks for decades, thus keeping the fragrances themselves out of the traditional trademark regime. Secondly, Section 13 of the Copyright Act, 1957 provides that unfixed sensory creation cannot be protected by copyright, preventing the fragrance compositions from having another means of intellectual property protection. Lastly, the law in India concerning comparison-advertising was formed on the basis of the law of commercial disparagement. The article traces the Trademark Registry’s unprecedented acceptance, in November 2025, Of India’s first olfactory trademark, filed by Sumitomo Rubber Industries for a rose fragrance applied to tyres, marks an important doctrinal development. However, the significance of this development for the perfumery industry is negligible. In essence, the trademarked scent is merely an arbitrary source identifier for tyres but not the very quality which the consumer seeks when buying a fragrance product. Therefore, the above registration has not helped to clarify the issue of whether the scent of a perfume product or marketing referencing it is capable of trademark protection. Against this backdrop, this paper examines how Indian courts are likely to respond when confronted with the first major dispute involving dupe perfumes. It situates the issue within comparative jurisprudence, drawing on decisions such as Coty, Inc. v. Excell Brands, LLC in the United States and L'Oréal SA v. Bellure NV in the European Union, while analysing India's evolving jurisprudence on comparative advertising through cases including Reckitt & Colman, Pepsi Co. v. Hindustan Coca Cola, and Dabur India Ltd. v. Colgate Palmolive (India) Ltd. In light of these authorities, this article proposes a predictive model that would help determine whether or not the "inspired by" perfume marketing falls under the scope of legality in India. The paper concludes that despite the fact that the law is still uncertain in this regard, the remedies of passing off and infringement provided by Section 29(8) of the Trade Marks Act of 1999 constitute more plausible ways of protection than the current doctrine of commercial disparagement. It is in this context that the paper attempts to bridge a widening gap between the development of consumer markets and the legal system. Files