For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

Regular round-ups of the previous week's blogposts are kindly compiled by Alberto Bellan.

Friday, 4 March 2011

"Time to stamp out misleading “parasitic” packaging"

The IPKat's friends at the British Brands Group (BBG), noting that today is the closing date of the Hargreaves IP Review, are marking the occasion by publicising a selection of products which they have found on the market and which, they maintain, are "packaged unnecessarily similarly to popular branded products". While naturally no self-respecting and sophisticated Kat would ever fall prey to such mimicry, it is common knowledge that approximately 99.9% of ordinary mortals will quite easily be induced to pick up the copycat product -- which is why "unnecessary similarity" is practised.

The BBG's media statement is reproduced below.  Note that it does not make wild and emotive allegations of any infringement of trade mark, copyright or design rights, or any passing off (although some or all of those causes of action may be relevant in any given situation).  The language of "unnecessary similarity" is moderate, grown-up and welcome, just as the practice of "unnecessary similarity" is sad, tediously annoying for consumers and intellectually stultifying [If the IPKat were a designer, he would cringe at the thought of having to fill his portfolio with work executed in pursuit of a "get as close to Brand X's product as you can without actually infringing it"].  It invites thought and debate as to the ethical dimension and even the business efficacy of leaning so heavily on the goodwill, the style and the creativity of leading brands.  Says the BBG:

"Time to stamp out misleading “parasitic” packaging

The number of products packaged in a very similar way to familiar branded products reveals that this misleading practice continues unabated in the UK. The British Brands Group calls on Government’s independent IP review to press for measures to stamp out “parasitic” packaging which misleads shoppers.

Today, the British Brands Group released the latest examples of products in packaging very similar to popular branded products, to demonstrate the extent of the practice. Gathered from store visits last year, the examples cover a range of products from shampoo to cheese [Merpel was a bit puzzled by this: she's never been confused between shampoo and cheese, though if you keep the latter in the fridge too long it does get hairy ...].

The release of this evidence coincides with the end of the consultation on the independent IP
review commissioned by Government. In its response, the Group calls for effective tools to stamp out similar packaging when it misleads shoppers. The last review (Gowers Review, 2006) found that brands are not well protected but its recommendation as to how to address the problem has yet to be implemented five years later.

Research in 2009 indicated that the more packaging looks like familiar brands, the more likely
shoppers are to buy products by mistake and also to think the products all come from the same
manufacturer. Shoppers expressed a definite preference for clear packaging which did not mislead.

In addition to duping consumers, similar packaging destroys distinctiveness which is crucial for
branded products to stand out from the crowd. The original product also faces increased costs and lost revenue, damaging the ability to invest. Meanwhile, the copy benefits from a reputation it does not warrant, increasing its appeal to shoppers and allowing it to command higher prices.

John Noble, Director of the British Brands Group, said, “At a time when household budgets are
under such severe pressure, shoppers must have confidence in what they are buying [this is a big problem, says the IPKat: when the imitation product sufficiently resembles the original, its very similarity gives them confidence -- false confidence]. People do not want the wool pulled over their eyes. Companies should be able to help both themselves and
shoppers by stamping out misleading packaging. In the UK this is simply not possible – a situation which is in stark contrast to most other countries. The Government’s IP review offers a perfect opportunity to rectify this.”

The British Brands Group calls on Government to provide companies with effective tools to stop
competitors misleading shoppers and destroying the distinctiveness of brands. This would result in better informed shoppers and a better environment in which companies can invest - all at no cost to the public purse".
Connoisseurs of previous IP reviews will instantly recall how the Gowers Review in 2006 almost effortlessly spotted that brands were not well protected from misappropriation, advising that, if new laws on unfair practices weren't shown to work, the Government should take instant and decisive action by, er, having another consultation.   The new laws mentioned here are found in the Unfair Commercial Practices Directive,
introduced into UK leglslation as the Consumer Protection Regulations 2008 [how fortuitous it is that the previous post on this weblog discusses exactly this legislation, here]. 


Says the IPKat, brand owners have a huge responsibility for keeping fakes, counterfeits and regular infringements off the streets and off the shelves.  They do this at their own expense and at their own inconvenience, even though they are actually acting as tax collectors for Her Majesty's Revenue and Excise by ensuring that trade in legitimate goods, which generates value-added tax and corporation tax, supplants unlawful and often clandestine business activities.  Yet, when it comes to tackling the issue of misleading packaging, the self-same companies have not even been granted a civil right of action. Instead, as the BBG points out, enforcement is placed in the hands of such organisations as the Office of Fair Trading and
Trading Standards -- where resources are already over-stretched. [The mere fact that the OFT and Trading Standards are over-stretched is only a small part of the problem, says Merpel, who believes that the real problem is that they don't have a vested interest in securing an outcome: they keep their jobs whether they solve the unnecessary similarity issue or not, and they don't lose any sleep if they don't achieve anything].

12 comments:

Anonymous said...

Well, having looked through the list, I'm not too sure what the fuss is about. The only products in the slideshow that might confuse me are the Revlon (hairspray?) products and their competitors - and that may be because my need and desire for such products vanished many years ago.
I feel that similarly packaged brands do the "ordinary person in the street" a useful service. They show that the product is likely to have some similarity in terms of its substantive function (taste, smell etc) to the more expensive version, but which may well not quite be as good in this respect (but of course which may in some cases be preferable!), but which will save them some money. Therefore they can buy these cheaper versions when they are a little strapped for cash, and can buy the others following payday.

If it weren't for the vague similarities in the packaging the consumer would never know of the competing products, and the competitors would have to launch massive advertising campaigns, which would end up putting the prices up and defeating the object.

Anonymous said...

Looking through the examples quoted, I find very few which are likely to confuse me. Yes, on some cases there are similar themes, but unless you are being very careless, I can't really see how one would generally would put one in the basket rather than another. I quite like it when similar products have similar packaging - I can then find and compare brands of the same sort of product without having to hunt through a multitude of different packaging. The "butter based spread" is an excellent example of this. All these packages tell me is that they are similar classes of product, so that I can easily compare them on a stacked supermarket shelf, becoming aware of comparable alternatives to my existing product, without accidentally picking up olive-spread, lard, and so forth.

@Wright_Idea said...

Isn't the practical reason why brand owners haven't taken action (if any of these instances are indeed actionable) that the potential defendants would be the very supermarkets that sell the brand owners' products as well as the so-called "copycats"?

Matthew Taylor said...

Like the previous two commenters, I don't find this nearly as persuasive as BBG would like it to be. The "cheese slice" example assumes an ability to monopolise the use of a cow's head for cheese (hardly a distinctive motif), while many of the energy drink examples are about brands wanting to monopolise specific colours where their use presumably falls short of acquired distinctiveness. Conversely, the SAMSON/SARSON'S example is surely one where straightforward infringement could be argued. If it hasn't been, I have to wonder why; if it has, it has no place in a portfolio of evidence that the current law is insufficient.

That said, the evolution of the shampoo bottles cause me to presume deliberate imitation - but I'm not clear how that is to be addressed. IMHO all of the products involved fail the "overall impression" test (naturally enough, as the distressed brand owner would otherwise sue for an infringement, instead of pushing an industry group to take up their case); one could, presumably create a new civil action based on intention to copy - although the evidential issues are potentially significant - but it's not clear that's what's sought.

So what exactly is BBG asking for? Their website makes reference to the inability of firms to bring civil actions under the CPRs, but doesn't then take the logical step and say that they would welcome that. They could also be taken to argue for the state to protect them from "parasitic copying"; the assertion that the CPRs aren't being enforced isn't tenable - what they mean, presumably, is that the bits that would be commercially helpful to them aren't a priority for enforcement authorities.

I'd be interested to hear specifically how BBG, or the IPKat (since he seems sympathetic to their cause), thinks the law should change - especially if it's a case of new civil actions.

Anonymous said...

The fact that a mere 33 percent have people have ever bought the wrong product by mistake, even once, is hardly evidence of a massive problem. On the contrary, as others have said, cheaper supermarket-own versions do consumers a favour by broadening choice. If there were widespread confusion, the supermarkets would have a lot of angry customers and would stop doing it.

The real problem is that many of the brand-name products are not truly innovative and the cheaper alternatives are just as good. Otherwise, they could be protected by a 20 year patent monopoly and everyone would soon work out that the knock-offs weren't as good.

Anonymous said...

I bought a six-pack of canned Coke from Waitrose which turned out to be own-brand. The similarity was ridiculous and I was ***** annoyed.

If the Coca Cola company are looking for a confused customer then give me a call.

Anonymous said...

As for the first comment, Waitrose Coke is in no way similar to that of the Real Thing. There is no service to the public and if the customers do buy a product believing there to be similarity then this is evidence that such similar packaging is misleading.

Kharol said...

two tiny issues:
- this will never be sorted out, because the "illiterate" consumer picks the "wrong" product and literate people do the judgement..
I didn't see cases of true confusability

- there's quite a couple of products (can't judge the ones shown, as I live in a different market) where the same manufacturer makes the identical "brand" and "no brand" product. Especially for places which don't carry any branded products it's very much intended that the "product outfit" is recognised accross the different distribution channels. You can sue yourself, but it's difficult to gain money that way ..

Anonymous said...

I forgot about the fact that I was illiterate. Mybe the lack of clear Waitrose branding on the outer plastic wrapper, the use of the workd 'Cola' in the same style and ribbon as that used by coke, and a very similar red colour had something to do with it. Only once the pack was opened did it become clear that it wasn't Coke.

I can't think why companies actually use differnet shapes, colours, pictures etc on their packaging if the concumer is going to ignore it when they rush round a busy supermarket with their children and always put on their reading glasses to endure they are buying what the think they are. Why also, would supermarkets use packaging similar to the brand? Surely there is a risk the consumer will mistakenly pick up the originators product, especially after they have spent so much money advertising.

Enforcing anything would be extremely difficult but that does not mean there is a serious problem. The manufacturers are in a very difficult position (even the huge companies that are probably most affected) becauase of the power of the supermarkets and their control over the marketplace. Just ask the milk farmers.

Anonymous said...

Mybe you are, mybe you aren't.*

However, you of course know that the word "Cola" can hardly be described as belonging to Coca Cola - it's the generic name for the product! I'd like to see a picture of the pack you bought, so I can see how similar they are. Google images hasn't come up with anything.

If you didn't even notice the difference when you were sat at home and not being rushed (didn't Jacob J refer to "the idiot in a hurry" or somesuch, which one is not when relaxing at home?), then maybe the Waitrose packaging is too close. But, if this is so, then Coca Cola will have a clear Passing Off case against Waitrose. So, let them bring it. There's no need for any other laws to be made.

* Sorry about that - I couldn't resist!

mail said...

You can find a study I did on the subject here: http://www.verymark.info/?page_id=1108

Anonymous said...

I couldn't find a google image of the offending pack either so Google must be protecting the copyright of photos of misleading packaging. This was 2 years ago and the waitrose cola cans on the web are completely different. I shall have a look next time I am in Waitrose. Maybe Coke did call foul and the packaging changed. The question is whether the get-up gives rise to a misrepresentation, but the use of the Waitrose (small) name in a corner may save them. Where are those Coke lawyers to advise what happened?

Anyway it was a lunchtime purchase so it is a case of a harrassed, overworked, underpaid employee in a hurry.

Typo jokes in blogs? F7 doesn't work! Mybe the Coke lawyers can prosecute a libel case in consideration for this 'idiots' evidence.

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