In May 2013, the Intellectual Property Office (IPO) released its report on lookalikes. The report, “Impact of Lookalikes: Similar Packaging and Fast-Moving Consumer Goods (FMCG)”, was based on extensive research conducted by the IPO.
The IPO report came as a result of pressure from brand owners, keen for greater and more effective protection against lookalike products. The research was carried out to ascertain the effect of lookalike products on consumers and also their effect on business and sales.
It is evident from conducting this exercise that the government takes seriously the importance in consumers being able to quickly identify quality products and make informed choices in a busy market. This in itself is a positive for brand owners.
Manufacturers’ Concerns over Lookalike Packaging
Leading manufacturers of branded products have been growing increasingly concerned about products which take on their visual appearance. Consequently, the IPO commissioned a report which looked to address whether or not lookalike packaging can cause consumer error and if so, how.
Lookalike items are described by the IPO as items that look like a well known brand in terms of its name, shape, colour or packaging. The latter encompasses packaging of the same size, type and shape, with similar graphics and/or a similar brand name as that of a brand leader which may benefit from that product’s reputation.
Findings of the IPO Report
The findings of the report show a small but a statistically significant lookalike effect. This means that consumers believe that similar looking products have similar product characteristics and a similar origin.
There is evidence to suggest that while some consumers reported suffering detriment from the mistaken purchase of a lookalike product, many found it to be a positive experience. It was reported only in a limited number of categories that there was an association between reduction in the sales of the brand leader and an increase in the sale of lookalike.
Overall it was concluded that insufficient evidence had been obtained to suggest that a change in the law is needed when it came to lookalikes.
Protecting Your Intellectual Property
Nevertheless, brands must take steps to deter infringement of their intellectual property and ensure that they are in the best position possible should they decide to take action.
Where a brand has built up the reputation in the look or features of its product and a third party uses a similar “get-up” or feature which subsequently confuses consumers as to the origin of the product, action may be brought for passing off for example.
The law of copyright may also offer some protection and registered trademarks are often key to protecting a brand.
Comment
There are usually a number of registered and unregistered IP rights at a brand owner’s disposition. These intellectual property rights may offer various causes of action and provide different remedies should competitors seek to illegitimately capitalise on the success of a well known brand to their advantage and to the detriment of the brand.
Brands should take pre-emptive steps to strengthen their position. For more information please contact James Crichton via e-mail jcrichton@rollingsons.co.uk or by telephone on 0207 611 4848.
