Snap Judgement
Cast your mind back to little you, aged about six, playing the card game Snap! with a favourite aunt or annoying older sibling. The utter delight of shouting the word first to win the hand. Do you think sometimes they let you win? Or were you really that quick and that good. Whatever. It was child’s play beautifully entwined with boundless joy. Happy days.
Good news Mum’s and Dad’s, you can get your kids to play this game at any local supermarket. Endless fun for littluns whilst you get on with the drudgery of the weekend shop.
Where there’s a well-known brand, chances are, pretty much right next to it will be something so similar you’ll have to bite your tongue not to shout Snap!
You might well ask yourself in this litigious brand-sensitive intellectual property world, how on Earth do they get away with it. It’s a very fair question because to the layman shopper it certainly looks like the brand copier has set out to deliberately confuse you to attract sales at the expense of the mimicked big brand.
Send in the clones
With some trepidation, it’s at this point you enter the murky world of judicial interpretation of our current intellectual property laws. Park common sense at the doorstep. You won’t need it. You and I know exactly what’s going on but when you add a spoonful of tortured legal logic, an obvious legitimate claim can wither and die before your very eyes.
As excellently reported in the Sunday Times this March, Thatchers, the well-known cider maker, had this ‘near-death’ experience in the High Court last year when they boldly took on German discounter Aldi for selling a strikingly similar brand of cloudy cider in its stores. The Aldi lemon cider was called “Taurus”
Reasonably, Thatchers claimed the Aldi lookie-likie was misusing its “heritage and reputation” and its trademark and Aldi was deliberately, by using remarkably similar branding, enjoying an unfair commercial advantage. But the judge said that whilst the Aldi brand did create a link in the mind of the customer with the tradition of the Thatchers brand, it had a sufficiently low degree of similarity to the Thatchers trademark that it did not confuse the public. Huh!
Boasting rights for Aldi then. And yet the packaging of Aldi’s similar product was quietly changed post victory to sliced rather than whole lemons perhaps because it flew too close to the sun on this occasion. Phew, that was close…the boardroom minutes might well have read that month.
Parasitic packaging
Puffin and Penguin, Marmite and Mighty, Bisto and Quixo, Weetabix and Bixies, Lurpak and Danpak, Colin and Cuthbert (see “Regarding Colin” April 20, 2021 post) – there’s a lot of it about to keep the kids amused, that’s for sure.
And it appears to be a particularly British phenomenon which casts a bit of a shadow over whether our intellectual property and passing-off laws are fit for purpose. What the German discounters get away with in the UK, would fail stricter laws on competition in much of Europe including Germany itself.
Euro kids don’t have nearly as much fun on the family shop, so it would seem.
Size doesn’t matter
It’s not just the big brands that suffer from copying, although they clearly do. Even if you have less sympathy with them because they’re rich, think of the younger ‘hot’ brands that are very often family run smaller businesses that have tirelessly built up their brand recognition to sit comfortably in a retail groove only to be disrupted by an enormous supermarket chain selling lookalikes. If that doesn’t seem fair, it’s quite probably because it isn’t. Think Heck sausages and Moo yogurts. Both suffered copycat branding by Aldi. There are many others.
Blame game
Here’s the dilemma, who’s driving this trend? Is it the consumer wanting cheap products, the big brands over-pricing and profiteering from historical reputations they may no longer deserve, propped up only by big budget marketing they can afford to bankroll, or the supermarkets deliberately stocking similar packaged products next to each other on the shelf, often promoting their own brand saying, implicitly, look – we’re the same but cheaper – buy me. Or all of the above.
There is also evidence than when the supermarket gets into a legal IP spat with a brand, it plays the underdog card, often via social media, whining they’re only trying to help their customers get the best deal.
New deal
At its core, the real issue is inadequate law to deal with copycat products. Some say it’s Britain’s own fault for being so wedded to brands. That seems a little harsh but our, perhaps snobby, love of brands is at odds with some of continental Europe.
A new law is heading for the aisles. The Digital Markets, Competition and Consumers Bill will ban goods that mislead the public. But it doesn’t allow businesses to bring actions. That will (on current draft wording) be the reserve of Trading Standards and the Competition and Markets Authority. A new law might help but then again it might not. Until it does – let the children play.
Copycat
Teachers at school used to warn us against copying. It was frowned on as the pastime of losers. Is it?
Not if you get away with it.
Murray Fairclough
Development Underwriter
OPUS Underwriting Limited
+44 (0) 780 145 9940
underwriting@opusunderwriting.com
