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What’s New Copycat? (Brands & IP newsnotes - issue 1)

27 September 2015

Last year, consumer group Which? carried out a comprehensive survey of the copycat product packaging market in the UK. It found that over 150 of retailers’ own-label products “mimicked” the market-leading brand-owner’s packaging.

Commercially, the leading brands rely on supermarkets. This brings an additional dynamic to rights enforcement with brand owners expressing a reluctance to flex their muscles. Combine that with aggressive advertising campaigns and no hiding the fact that the likes of Aldi and Lidl are targeting the leading brands, and brand-owners are starting to look over their shoulders with increasing regularity.

Brand owners protect their packaging in a number of ways, such as by registering trade marks and designs. In the UK, there is the added layer of protection provided by unregistered rights like copyright and passing off and the Consumer Protection Regulations (CPRs). There are limitations with each of these forms of protection. For example, copycats often don’t use a name similar to the brand, instead taking elements of the get-up like colour, font and general design features (still elements which brand owners invest money in devising). That makes trade mark enforcement difficult unless the brand owner has taken steps to register elements of the packaging itself. Even then, the bar for trade mark infringement and passing off requires evidence that consumers are likely to be confused or misled into thinking that the copycat originates from the brand owner.

In the UK there is arguably an enforcement gap around copycat packaging with brand owners struggling to deploy their IP rights successfully in the courts against the copiers. This is different to mainland Europe where brand owners can more readily rely on Unfair Competition laws. Recognising that enforcement gap, the British Government launched a consultation. The findings were announced in October and it’s not good news for brand owners with the Government refusing to introduce a private right of action to enforce the Consumer Protection Regulations. Brand owners are left to rely on traditional enforcement methods.

This article was first published in the Brands & IP newsnotes publication - issue 1.

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