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The effect of Lookalike branding on consumers

Written by Tom Mould, Work Experience Student at Lawdit Solicitors Ltd on 09 December 2013

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In a world where everyone is in a rush, packaging of a product is very important. There are those that realise this and take advantage by altering the packaging to look similar to a competitors’ product. Supermarkets have been especially to blame for these problems. Asda for example famously lost the case against Penguin biscuits for copying the look and having a similar name as their competitor.

There has recently been a report by the British Brands Group outlining the impact that lookalikes have upon consumers like you and I. It has found a direct correlation between declines in sales of the brand leader resulting in an increase in the sales of the lookalike product. Where time is precious and the weekly shop is getting shorter, grabbing the item that resembles the colours and patterns of the brand leader is becoming more frequent. Often shoppers realise they have bought the wrong product after they get home. Supermarkets like Asda want this, hence why their own brand items frequently look very similar to the brand leaders product. Another perception by consumers is that the similar product is from the same company and therefore the perception of quality is increased. If a product looks like the brand leader, then quality is also implied. As a result, the lookalike product will be perceived as being of higher quality than it actually is due to it being a cheap alternative to the brand leader.

What are the legal repercussions of this practice?

There are two main problems with this; firstly it is an unfair practice. Directive 2005/29/EC - also known as the Unfair Commercial Practices Directive - concerns the actions made by businesses which affect consumers. Article 5 (4) (a) prohibits unfair commercial practices. A practice is deemed to be unfair if it distorts the economic market by being misleading to the consumer. The legal effect of this would be that the actions taken by supermarkets and other companies would be committing an illegal commercial practice.

Secondly, the intellectual property behind the design may be infringed by supermarkets. A prime example of this was the Puffin biscuit case, where intellectual property rights in the design prevented copying and an unfair commercial advantage being taken. Coca Cola famously protected the intellectual property in their bottles. This means that no one may use the same or sufficiently similar shape of bottle for commercial gain or any other reason.

Overall it has been shown that the practice of making products look alike is unethical and illegal and should be stopped to prevent an unfair commercial advantage taking place.

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