In the world of beauty duping, patents offer little protection and small businesses are most vulnerable

Small beauty entrepreneurs say they are struggling to stop copies of their cosmetics being released because they don't have the legal budgets to fight big companies that are self-confessed dupers.

It's a lesson that entrepreneur and small business owner Iris Smit learnt the hard way after founding her brand The Quick Flick in 2017.

An architecture student at the time, the Perth businesswoman designed a solution that would make it easier to apply winged eyeliner, a popular makeup application that can be tricky to perfect.

Ms Smit developed a prototype to "stamp" the winged eyeliner to the outer corner of the eye, had her first products manufactured, and protected her designs through trademarks and patents.

Although she filed what's known as a "mini patent" for her eyeliner stamp in August 2017, Ms Smit regularly sees dupes of the product — either in person, or sent to her by observant customers.

"At least once a week I see something, or I have customers forwarding me content from other brands saying 'these people are copying you, this looks very similar, how are they able to do this, how is this legal?' all the time," she told The Business.

"It's not even a surprise to me anymore."

It was something Ms Smit was warned about during her appearance on entrepreneurial reality TV show Shark Tank in 2018, with prospective investor Janine Allis telling her that a provisional patent would not deter cosmetics giants from copying her product.

Ms Smit estimates that she's spent around $50,000 on her patent and its associated costs, but has learnt that being proactive isn't enough to prevent copycats.

Ms Smit declined to comment on which brands she thinks have copied her eyeliner stamp, fearing potential legal action.

However, the ABC has independently found — and purchased — similar products made by a range of companies: Sportsgirl, Thin Lizzy, The Kind Collective, Kmart's OXX brand, and renown cosmetics duper, MCoBeauty.

The ABC is not suggesting the above companies are infringing on the patent held by Ms Smit and The Quick Flick.

'We do our own thing'

Duplicate products, or dupes, are not a new phenomenon in the beauty industry, but have attracted significant attention in the past two years due to the cost-of-living crisis.

Dupes are generally defined as products that are replicates of higher-end cosmetics, sold at a lower price point — and Australian business MCoBeauty has become synonymous in the beauty industry for duping popular products right down to their packaging.

MCoBeauty went viral for its dupe of a cult Charlotte Tilbury product that had strikingly similar packaging to the original, but was retailing for half the price as part of its "luxe for less" brand ethos.

Founder and CEO Shelley Sullivan said her company wasn't concerned about duping cosmetics by smaller beauty brands.

"I'm not worried that we're ripping off small business owners," she told The Business.

"We have a bit of a view on other brands should probably protect what they're doing."

Ms Sullivan also defended MCoBeauty's winged eyeliner stamp, stating that there were "other products" in the market when her company launched its own version, and adding it was not a top seller for the brand.

"We run our own brand, we do our own thing. It's not about deep pockets, it's about providing customers what they want," Ms Sullivan said.

MCoBeauty's lawyer Len Mancini added that patents were rarely used in the cosmetics industry in Australia, because there are low levels of innovation in the sector that meet the threshold.

In a separate statement, MCoBeauty specifically denied any claims or implications that it had infringed The Quick Flick's eyeliner stamp patent.

The ABC contacted Thin Lizzy, Sportsgirl, The Kind Collective and Kmart about their respective eyeliner stamps and their production process.

A Kmart spokesperson said the retailer does several checks before the items are manufactured and sold in-store.

"Our merchandise process also ensures we conduct thorough checks during the product ranging and development process, to ensure we are not infringing the rights of others," they said in a statement.

The ABC did not receive a response from Thin Lizzy, Sportsgirl or The Kind Collective by deadline.

The particulars of patents

To better understand why variations of eyeliner stamps are being sold, the ABC asked copyright and trademarks expert Dr Sarah Hook from Western Sydney University to review The Quick Flick's patent.

For a standard patent to be awarded, she explained that the application needed to have specifications and claims.

"Specifications are like the instructions, and claims are what someone is claiming to hold a monopoly over and what is being protected from others copying," Dr Hook said.

She said that The Quick Flick was not awarded a standard patent, because the invention (that is, the eyeliner stamp) was not "novel" and someone in the industry would be able to "come up with something similar".

Instead, Dr Hook said The Quick Flick filed an "innovation patent" — which is how other cosmetic companies were able to create similar products.

"[Innovation patents] have a lower inventive level known as an 'innovative step' rather than an 'inventive step' where the innovative step is presumed unless it only varies slightly from other products in a way that makes no substantial contribution," she said.

"The claims in that patent are pretty specific to the shape and design of the applicator — meaning that as long as competitors change it a little, the general concept is able to be copied."

Even if business owners do the right things by protecting their products, Dr Hook said it often isn't enough in the highly competitive beauty industry.

"Unfortunately that is just the business. That is the way business works," she said.

"As soon as you come out with a product, your competitors are going to come out with a rival product.

"It can be pretty unfair, and that is the way that it does work in this industry … the bigger people with the more research and development will eat up the smaller little guys, unfortunately."

However, Dr Hook stressed that intellectual property law was not flawed by not offering "guaranteed protection" to small businesses.

"The idea is that we don't want someone to trade mark a lipstick colour and then be restricted to only one brand. That is not fair on consumers," she said.

"Competition is healthy for the industry and for consumers — as long as [it] inspires innovation and companies are acting in good faith and not trying to mislead."

'You pick your battles'

It has been challenging for Iris Smit to accept that her resources — both time and money — are better spent on growing her business and creating innovative products.

"I do still care. I just think it's such a big case to try and fight, especially as a small business when you have limited resources and you're not cashed up," she said.

"So it's kind of like you pick your battles."

Despite her experiences, Ms Smit doesn't see an issue with having cheaper and more affordable alternatives on the market — but believes dupe culture was at risk of going too far because social media platforms like TikTok have made it trendy.

"The actual definition of a dupe or to be duped is to be deceived or tricked or manipulated, and it seems like it has become this very trendy term," she said.

"Where I'm not so comfortable is actually saying this is a direct dupe, or a direct replica of this product, and the actual packaging looks identical. The only thing that's different is the logo."

Ms Smit said she would like to see the conversation around dupe culture morph into a discussion about business ethics, especially for smaller brand owners.

"It feels like no-one's actually asking the question, is this really ethical?" she said.

"Is it ethical for a larger business to come along and dupe a small business, especially a small, female-founded business?

"I'm not just speaking about me, there's multiple brands I could name where I've seen larger companies come along and dupe that smaller business, that smaller brand.

"At the moment, we seem to be championing creating dupes and creating cheaper alternatives to successful products.