Keeping copycats at bay

Keeping copycats at bay

How should you protect your products from a profusion of own-brand lookalikes?

Mimicry of the packaging of familiar brands seems to have become a marketing strategy among grocery retailers, recalling the bad old days of the 1990s. Many brands have now been affected, with many others no doubt wondering whether they will be next.

Before considering what marketers ought to do, should they fall victim to this, it is worth asking whether they should do anything at all. After all, isn’t imitation the sincerest form of flattery? 

Not in the brand world it isn’t.

At the basic level, illegal copies mislead shoppers, steal sales and increase costs. Lost customers are lost market share, and that’s hard and expensive to regain.

Copying also destroys brand distinctiveness. It commoditises categories and undermines investment in reputation, quality and innovation by insinuating the products are the same in all respects, bar price. Copies may make the original brand look expensive and, if the copy disappoints, the original may take the reputational hit – shoppers tend to think they are made by the same company.

For companies, the brand is the unique bond between the individual and their products. It is their most important corporate asset. Copies weaken that bond, so sitting back and watching the copy thrive and spawn more copies is not an option. But what to do?

As ever, prevention is better than cure. Your own packaging is the place to start. If this has lots of generic elements – common to others in the category – you are immediately vulnerable. Distinctive packaging, including the shape of the pack, and the design, colours and images on the label, gives stronger shelf stand-out and is more protectable.

Once you have distinctive packaging, protect it. This is an area for specialists. Registering not just the name, but also the label design and distinctive pack shapes, as trademarks strengthen your protection significantly. Your pack shape, if new, may also warrant a registered design. A good intellectual property (IP) lawyer can help you develop a pack design that’s capable of being registered and protect it. IP and protectability needs to be part of the design brief.

Should a potentially illegal copy land on the market, slapping down a valid, registered IP right on the desk is the strongest counter-measure you can deploy and gives you the best chance of persuading the offender to stop copying you.

If you do not have strong IP rights all is not lost, but in the UK the outcome is far from certain. The law of passing off gives some protection, but any case would turn on the evidence and it would be hard to predict the outcome in advance. Copyright protection may apply if the copy is very similar. Again, this is the realm for the lawyer.

There are other remedies available in theory but, in the UK, not in practice. It is a breach of the Consumer Protection Regulations to mislead consumers via packaging but, practically, only Trading Standards can enforce the regulations – and it lacks the resources to do so. A copy may also be a misleading comparative advertisement, but again only Trading Standards can act.

Despite the constraints on Trading Standards, it is worth raising infringing copies with it. Should it decline to act, remind it that it has a duty to enforce and ask it to make a formal record of your complaint. That may encourage it to have a warning word with the copier.

Tackling copies in the UK is unquestionably challenging but strong, distinctive packaging protected by registered IP rights gives the strongest defence. The weapons are meaningless, though, without the willingness to use them. Having a strong reputation for fighting back encourages copiers to pick on easier targets.

John Noble is director of the British Brands Group, and a chartered marketer.

John Noble British Brands Group Director
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