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.
EU trade mark reforms come closer (Brands & IP newsnotes - issue 1)27 September 2015
Seven years after the European Commission started its evaluation of the European trade marks framework, the texts of the new proposed legislation were finally published in June 2015.
It never rains, but it pours…(Brands & IP Newsnotes - issue 1)27 September 2015
Registered designs are used to protect the appearance of products. In considering whether to allow registration, several factors come into play: what else is already out there (the ‘prior art’); who will use it (the ‘informed user’); and what ‘degree of freedom’ does the designer have in arriving at the particular design?
You’re cabbing a laugh (Brands & IP Newsnotes - issue 1)27 September 2015
The High Court has refused an application by the manufacturer of the iconic London black cab (“LTC”) for permission to adduce survey evidence in a claim for passing off.
A copyright work in 140 characters? (Brands & IP Newsnotes - issue 1)27 September 2015
It isn’t easy to keep your social media followers entertained with rafts of enthralling and hilarious new material.
Not so-far, Sofa Workshop (Brands & IP newsnotes - issue 3)27 September 2015
If a trade mark proprietor does not make ‘genuine use’ of its marks, they may be vulnerable to attack from third parties.
When “logos” turn into “no-goes” (Brands & IP Newsnotes - issue 1)27 September 2015
As we move even deeper into an age of digital advertising and social media, it is becoming increasingly important for businesses to have a short hand for their brand; something which denotes the business, stands out as a guarantee of origin and makes the brand instantly recognisable. We’re talking about logos.
Access to justice: IPEC 1 - MoJ 0 (Brands & IP Newsnotes - issue 1)27 September 2015
Conducting litigation in a cost effective and proportionate manner can be a challenge, especially if it involves big brand owners going toe to toe. But help is at hand in the form of the Intellectual Property Enterprise Court (‘IPEC’).