M & S Cutlery BoxAt the close of submissions to the Hargreaves Review, the British Brands Group have used the opportunity to raise awareness about the increasing problem of look alike packaging. The practice is not only misleading to consumers, who are probably unaware that they are being duped but it begs the question, what is main board food chain policy which allows and condones the production of parasitic packaging and an absolute disrespect for the IP of legitimate brand owners? ACID is quite sure that if the CEO of a major food chain was accused of stealing a watch or wallet there would be shock and horror but somehow feel it is OK to steal a brand identity which doesn’t belong to them. Seemingly, producing look alike consumer confusing packaging is without conscience, happily passing off their own products riding on back of another’s hard fought for “look and feel” and brand reputation. 2009 research, according to the British Brands Group, indicated that the more packaging looks like familiar brands, the more likely shoppers are to buy products by mistake and also think the products all come from the same manufacturer. Shoppers expressed a definite preference for clear packaging which did not mislead.

Time to stamp out misleading “parasitic” packaging

The IPKat’s friends at the British Brands Group (BBG), noting that today is the closing date of the Hargreaves IP Review, are marking the occasion by publicising a selection of products which they have found on the market and which, they maintain, are “packaged unnecessarily similarly to popular branded products”. While naturally no self-respecting and sophisticated Kat would ever fall prey to such mimicry, it is common knowledge that approximately 99.9% of ordinary mortals will quite easily be induced to pick up the copycat product which is why “unnecessary similarity” is practised.

The BBG’s media statement is reproduced below.  Note that it does not make wild and emotive allegations of any infringement of trade mark, copyright or design rights, or any passing off (although some or all of those causes of action may be relevant in any given situation).  The language of “unnecessary similarity” is moderate, grown-up and welcome, just as the practice of “unnecessary similarity” is sad, tediously annoying for consumers and intellectually stultifying [If the IPKat were a designer, he would cringe at the thought of having to fill his portfolio with work executed in pursuit of a "get as close to Brand X's product as you can without actually infringing it"].  It invites thought and debate as to the ethical dimension and even the business efficacy of leaning so heavily on the goodwill, the style and the creativity of leading brands.  Says the BBG:

Robert Welch ForkBBG’s Statement “Time to stamp out misleading “parasitic” packaging

The number of products packaged in a very similar way to familiar branded products reveals that this misleading practice continues unabated in the UK. The British Brands Group calls on Government’s independent IP review to press for measures to stamp out “parasitic” packaging which misleads shoppers.

Today, the British Brands Group released the latest examples of products in packaging very similar to popular branded products, to demonstrate the extent of the practice. Gathered from store visits last year, the examples cover a range of products from shampoo to cheese [Merpel was a bit puzzled by this: she's never been confused between shampoo and cheese, though if you keep the latter in the fridge too long it does get hairy ...].

The release of this evidence coincides with the end of the consultation on the independent IP review commissioned by Government. In its response, the Group calls for effective tools to stamp out similar packaging when it misleads shoppers. The last review (Gowers Review, 2006) found that brands are not well protected but its recommendation as to how to address the problem has yet to be implemented five years later.

Research in 2009 indicated that the more packaging looks like familiar brands, the more likely shoppers are to buy products by mistake and also to think the products all come from the same manufacturer. Shoppers expressed a definite preference for clear packaging which did not mislead.

In addition to duping consumers, similar packaging destroys distinctiveness which is crucial for branded products to stand out from the crowd. The original product also faces increased costs and lost revenue, damaging the ability to invest. Meanwhile, the copy benefits from a reputation it does not warrant, increasing its appeal to shoppers and allowing it to command higher prices.

John Noble, Director of the British Brands Group, said, “At a time when household budgets are under such severe pressure, shoppers must have confidence in what they are buying [this is a big problem, says the IPKat: when the imitation product sufficiently resembles the original, its very similarity gives them confidence false confidence]. People do not want the wool pulled over their eyes. Companies should be able to help both themselves and shoppers by stamping out misleading packaging. In the UK this is simply not possible – a situation which is in stark contrast to most other countries. The Government’s IP review offers a perfect opportunity to rectify this.”

The British Brands Group calls on Government to provide companies with effective tools to stop competitors misleading shoppers and destroying the distinctiveness of brands. This would result in better informed shoppers and a better environment in which companies can invest – all at no cost to the public purse”. Connoisseurs of previous IP reviews will instantly recall how the Gowers Review in 2006 almost effortlessly spotted that brands were not well protected from misappropriation, advising that, if new laws on unfair practices weren’t shown to work, the Government should take instant and decisive action by, er, having another consultation.   The new laws mentioned here are found in the Unfair Commercial Practices Directive, introduced into UK leglslation as the Consumer Protection Regulations 2008 [how fortuitous it is that the previous post on this weblog discusses exactly this legislation, here].

Says the IPKat, brand owners have a huge responsibility for keeping fakes, counterfeits and regular infringements off the streets and off the shelves.  They do this at their own expense and at their own inconvenience, even though they are actually acting as tax collectors for Her Majesty’s Revenue and Excise by ensuring that trade in legitimate goods, which generates value-added tax and corporation tax, supplants unlawful and often clandestine business activities.  Yet, when it comes to tackling the issue of misleading packaging, the self-same companies have not even been granted a civil right of action. Instead, as the BBG points out, enforcement is placed in the hands of such organisations as the Office of Fair Trading and Trading Standards — where resources are already over-stretched. [The mere fact that the OFT and Trading Standards are over-stretched is only a small part of the problem, says Merpel, who believes that the real problem is that they don't have a vested interest in securing an outcome: they keep their jobs whether they solve the unnecessary similarity issue or not, and they don't lose any sleep if they don't achieve anything].

View the British Brands Website Article

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