Back Four Brand Protection

Back Four

According to the Mintel GNPD, between 2017 and 2018 there was a 23% rise in the number of new chocolate products launched at Easter – move over Christmas. Manufacturers and retailers are supplying consumers with an abundance of choice and diversity to suit every sweet tooth and every budget. So the question is, why do we see so many copycats?

Mini Eggs Copycats

Breeding Like Rabbits

It was highlighted in the press last year that Aldi’s range of budget chocolate rabbits for Easter bore more than a striking similarity to the more expensive branded version produced by Swiss chocolate maker, Lindt.

Lindt Bunny Vs Supermarket Copycats

In this particular case, Lindt is somewhat stuck because of a previous lawsuit which they raised (and lost) against their Austrian rival, Hauswirth. Lindt’s complaint that their gold rabbit was being infringed was rejected by the EU Intellectual Property Office, but also by subsequent EU courts of appeal. According to the courts, the bunny lacks the distinctiveness required for trade mark protection and so it’s been open season on the poor rabbit ever since.

The Imitation Game

Lindt aren’t the only brand to suffer at the hands of big retailers who like to play the imitation game though, and the battle between copycat brands and market leaders has become a recurrent problem.

‘Copycat versions of leading brands exist in as many as a third of products.’
2002, American Supermarket Research

Branded Products against Supermarket Copycats

It’s clear that retailers imitate higher cost brands in order to take advantage of their status, but if the “why” is simple then the “how” is more complicated. Research suggests that there are two types of copycat branding; perceptual and thematic.

Perceptual Imitation

Perceptual imitation is relatively straightforward and occurs when the copying product is packaged in a way that resembles the competition. This may occur through the use of the same colours, fonts, words or even the same letters within a word.

Copycats of products across all sectors

Thematic imitation

Thematic imitation on the other hand is more general and relies on the suggestion that the leading brand makes about itself. For example, although the packaging of the two products below looks different, the theme of the market leading oats brand on the left combines rural simplicity with ease of use, both of which are echoed in the own brand on the right.

Oats so Simple for these Copycats

Copycats in the Courts

From a legal perspective, ‘Perceptual Imitation’ has been at the centre of most high-profile cases, even where there is no clear trade mark infringement. This is because the question of whether consumers are fooled by lookalikes is much easier to prove when the packaging is similar.

There have been some definite wins for brands, including the landmark case of United Biscuits who sued the supermarket chain Asda for a passing off infringement against its Penguin bar.

Among the more mixed results, however, was Unilever vs Albert Heijn, a Dutch retailer. Albert Heijn was accused of using its dominant market position to confuse shoppers with its own house brands which looked similar to Unilever’s.

Unilever sued over thirteen of Albert Heijn brands, but only two cases were found in their favour. While many observers saw the case as a victory of sorts for Albert Heijn, the case further fed into the general sense that there is really no one legal position on copycats brands and that the individual perception of consumers is crucial.

Who’s Fooling Who?

If the court cases come down to whether individuals can really differentiate between packaging, then what does the research really show?

‘Nearly a quarter of respondents had experience of being deceived by a lookalike product and purchasing the own brand as a result.’ Which? Study

Another study found the same purchases of own brand products had resulted in 38% of deceived shoppers feeling annoyed at the error. If these figures are true, could brands potentially be losing a huge amount of sales?

Delving deeper, the picture is less clear. Three Dutch studies on consumer perception were carried out in 2010, all of which had interesting results. Crucially, when respondents examined a range of products they gave a higher approval rating for own brand products which used the same theme but which didn’t infringe or copy the market leading product. It seems, customers in this case wanted something different than simple copycats.

When asked whether or not they believed own brand copying was fair, the results were surprisingly unanimous; not only were shoppers consistently aware of the imitation, but they also believed that it was demonstrably unfair.

‘Shoppers were consistently aware of the imitation, but they also believed that it was demonstrably unfair.’

Overcoming the Copycats

So the overall landscape for those products which may be viewed as “passing off” established brands is a complex one. The courts are undecided, which can be problematic for brands, but there may also be good news on the consumer side.

The research cited above suggests that not only were the public not “tricked” into buying cheaper brands with similar packaging, but that many of them were actively dismissive of products which deployed such tactics.

What this suggested to brands is that the cases of them losing sales from confused shoppers are actually limited. Many customers see through the tactics and it actively creates negative attitudes towards the retailer.

Protecting your Brand

Ultimately, for a brand to best protect itself, developing a totally unique product and sales proposition is the thing that will win long-term customers. If you manufacture something of fundamentally good quality, and fully protect your IP rights with smart planning then people will return to you.

Beyond that, perhaps the best thing is just to be a little flattered by those clamouring at your heels

After all, Lindt have sold more than 135 million chocolate rabbits, so they can’t be doing so badly.

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