From the Lidl ‘Hampstead’ gin to Aldi’s Cuthbert the Caterpillar cake, ‘copycat’ products have recently taken the spotlight, with brands looking to remove them from supermarket shelves. However, copycat stores having successfully used this business model for many years, and the attack of the clones is likely to continue. So, how can brands protect themselves from these lookalikes?

What is a ‘copycat’ product?

Essentially, these products are imitations made to look like the original, but with a few key differences. By copying aspects such font or colour rather than brand name, these products tiptoe carefully around the realm of trade mark infringement, making it harder for brands to take action.

Proving consumer confusion

Usually, a trade mark infringement case will centre on a name or a logo and the potential to cause confusion for consumers. The problem comes when proving this confusion, as it can be difficult to establish, especially if the name or logo isn’t identical to the registered mark.

As such, copycat cases often revolve around ‘passing off’, meaning that another brand is using the positive associations of the original to sell their own lookalike product (such as colour, shape, designs – known as “get up”). However, this can be just as hard to prove as trade mark infringement.

For example, when entering Aldi or Lidl, customers are fully aware that they won’t be buying the real thing. As a result, it could be said that some copycat products are merely legitimate competition.

Brand dilution

As well as a reduction in sales being a cause of concern for brands, copycats can also dilute well-established names. If a number of products are using the same colour scheme or font, a ‘family’ of similar products is created, increasing the chance that shoppers will buy an imitation.

Should the copycat be of poor quality, this can then damage the reputation of the original brand through association.

Protecting your product

The more comprehensive a brand’s IP portfolio, the more likely a copycat court battle will fall in favour of the original product. Although registering trade marks for fonts and colours is more challenging, this should still be considered. – along with design right protection and copyright.

Another way to protect a product’s market position is to boost its visibility through effective marketing, showing consumers why it is better than its competitors.

Unless there is a substantial legislation change to include a concept such as “unfair competition”, brands will have to continue to battle against the onslaught of copycat products. However, by creating a strong IP portfolio, businesses can give themselves a fighting chance in court.

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Danny is an associate in our Intellectual Property team, with a specific focus on contentious intellectual property matters.

He advises clients on the full spectrum of intellectual property rights, including patents, trade marks, designs, and copyright. Danny has particular experience advising clients in the retail, engineering, brewing, education, technology, medical devices, online and social media, and IT sectors.

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Published: 9th July 2021
Area: Corporate & Commercial

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