Copycat packaging and lookalikes - is the law finally catching up?

Many brand owners will be aware that in the UK (unlike in many overseas territories, such as France and Germany) there is no 'unfair competition' law they can rely upon to prevent competitors producing products that are sold in copycat/lookalike packaging to their branded products; in other words, in packaging that has the 'look and feel' of a competing well-known brand. This is often referred to as 'unnecessarily similar' packaging, or 'parasitic' packaging.

Instead, brand owners have to try to bring their case within one or more claims for IP infringement, such as registered trade mark, design and/or copyright infringement, and/or passing off. Due to the limitations of these types of claims, they are often not appropriate and prove unsuccessful when dealing with lookalikes. Thus, it is considered by many that there is a gap in the law, which means brand owners are not adequately protected in the UK.

In particular, it is often the case that a registered trade mark infringement and/or passing off case would fail because consumers are not confused into thinking that the copycat product in question is the brand owner's product, or is made by the brand owner. However, due to the similar packaging, the consumer thinks that the quality of the product is the same, or closer to what they would have assumed if the packaging were different.

All of this could be about to change. The Department for Business Innovation & Skills has recently issued a call for evidence on the case for granting businesses the right to bring a claim for an injunction to prevent the sale of copycat/lookalike packaged products, pursuant to the Consumer Protection from Unfair Trading Regulations 2008. These Regulations are currently enforceable only by public bodies. They prohibit traders from engaging in certain misleading actions, including marketing a product in a way that creates confusion with any products, trade marks, trade names or other distinguishing marks of a competitor, such that the average consumer takes, or is likely to take, a different decision as a result.

If, because of copycat packaging, a consumer buys the product thinking that the quality/nature of the copycat is comparable to the quality/nature of the branded product in question (or at least that it is more comparable than they might otherwise assume) then it is certainly arguable that the Regulations have been breached. Thus, if the Government decides to grant businesses the right to bring a claim for an injunction to prevent the sale of copycat/lookalike packaged products, pursuant to the Regulations, we could see it becoming easier for brand owners to protect the 'look and feel' of their packaging for their products.

If you would like to make any submissions in response to the call for evidence, then more details about it and how to respond can be found here.

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