It’s fair to say that few people look forward to a supermarket shop. For the most part, a turn around the aisles is seen as a necessary evil, a mundane routine to be endured, particularly in these troubling times of coronavirus and mandatory face masks.
But it’s our timeworn habits when it comes to the weekly shop that so-called ‘copycat products’ are relying upon. Whether you call these items lookalikes, copycats or even parasites, their misleadingly similar packaging exploits our desire to whip round the supermarket, our fast decision-making (typically around two seconds per item), and our sub-conscious responses to colour and shape.
This is not a new problem. It dates back to the 1980s and shows little sign of going away. The situation is exacerbated by the fact that consumers who purchase copycat products by mistake often don’t know what’s in their shopping trolley.
The British Brands Group, which champions brands in the UK, commissioned Gough Square Chambers to produce an Opinion on the applicability of the Consumer Protection Regulations 2008 (CPRs) to the problem of misleadingly similar packaging. Gough Square barrister Michael Coley says: “It’s clear that a lot of consumers are either confused as to what they’re buying, so they pick up a copycat product thinking it’s the actual product, or they’re confused as to the nature of the copycat. They know the product is not the product it’s copying but they think that, because it looks sufficiently similar, it might be made by the same group of companies or by a related brand and, as a result, have the same kinds of qualities.”
It may come as a surprise to learn that there is a requirement on grocers under the CPRs to make sure this
doesn’t happen. Yet it can be the retailer itself that is the one to sail perilously close to the wind.
In the past, leading brands have taken retailers to court – most notably Penguin, who took issue with Asda’s Puffin chocolate bars in a 1997 case. Asda was found guilty of passing off but was allowed to continue selling Puffins on the condition that the packaging was changed. But this kind of action is unusual, as John Noble, Director of the British Brands Group, explains.
“Because brand owners don’t have the remedies to deal with this themselves, and trading standards don’t have the resources to deal with it, they are reluctant to go to law,” he says. “In the absence of enforcement by brand owners and trading standards, shoppers are left unprotected and with no champion.”
He adds: “We said to government right from the start, when the CPRs came in in 2008, ‘don’t put the onus on trading standards’. We’d much prefer trading standards to be focusing on other critical areas. Let brand owners enforce these regulations themselves in the interests of shoppers.”
Needless to say, the government went down another path. Today, legal claims against copycat products are tricky, not least because trade mark and copyright claims are very difficult. It’s easy for a retailer to adapt an existing design and then claim that they didn’t copy, and say shoppers couldn’t possibly be misled.
“The courts have set the high jump bar very, very high to the extent that you can’t, for example, go out and survey people for evidence of confusion because the opposition barrister will quite rightly say, well, this is an artificial exercise and you can’t rely on this kind of evidence,” says Noble. “That bar is really high for intellectual property rights, passing off, trade marks and the like. But the bar is just that little bit lower for the CPRs. However, that lower bar has no credibility with the retailers as a deterrent because they know that trading standards won’t enforce.”
As Noble says, it’s not that trading standards don’t want to take action, it’s that limited resources and more pressing priorities prevent them from doing so. “The way the legislation is enacted in the UK is a problem in that it confines the ability to enforce to those who don’t really have the resources.”
Matter of priority
So, what of trading standards? Coley agrees that there are a variety of impediments when it comes to enforcement. “One reason trading standards may not always necessarily bring actions is that in some cases the products may not be sufficiently misleading to pass the threshold for an offence to have been committed. The test is that the average consumer will be misled and would take a transaction decision they wouldn’t have taken otherwise,” he says.
“Another reason is simply resources. Quite rightly, there are other cases which might have higher priorities because, in those cases, there might be safety implications.”
Some might say, why do copycats matter? It’s only a cheap bottle of shampoo or a tin of pasta sauce. But it does matter, not least because it undermines the whole business model of branding and being able to compete on a fair and equal basis. Put simply, if you’re competing against copies, then it’s not fair competition.
Coley says: “When we’re talking about a bottle of shampoo that’s worth a few pounds, the detriment to the individual consumer on that purchase is not so great. But it’s when those consumers add up that you’ve got the detriment to industry and to the operation of the market. That’s where the real issue lies.”
He adds: “If it’s pushing up costs for the businesses who are being copied because they have to take on regular rebranding exercises in order to differentiate themselves, that pushes prices up for consumers. And it erodes consumer choice because consumers aren’t making a free and informed decision. And while most people may well realise their mistake after they’ve bought something, or even before they’re about to buy something, the ones who don’t are likely to be the ones who need the most protection, such as vulnerable consumers, elderly consumers, and the less savvy consumers.”
Looking to the future, Noble would like to see an effective deterrent for supermarkets which commission misleading packaging, as well as a legislative change that would allow brand owners to bring action themselves.
Meanwhile, Coley thinks that it’s not necessarily a question of changing the law. “At the moment we have various public and private remedies… it’s really a question of making people aware that the law is there.”