Parasitic copying

Between January and February 2009 a new study was undertaken by BMRB, funded by the British Brands Group, into the impact on shoppers of similar packaging. This is currently the largest study undertaken on this subject in terms of the number of products investigated. This study found that one in three shoppers admitted to buying the wrong product because of its similar packaging, that as packaging becomes more similar to a familiar brand so more shoppers believe the products come from the same factory, and that as packaging becomes more similar so more shoppers are likely to buy the product.

A Brand Briefing summarising the research results is available for download here and the full research report is available here. A press release announcing the study is available here.

Parasitic (or copycat) packaging is used by competitors to boost sales by confusing and misleading consumers. Distinctive features of a brand’s packaging are hijacked in order to dupe shoppers into buying something they believe to be that brand, made by the brand manufacturer or sharing the reputation of that brand. The competitor gets a free ride on the back of the brand’s reputation, investment and innovative efforts.

Copying the packaging of familiar brands with strong reputations has been around for some time, becoming widespread in the early 1990s when some retailers adopted the practice when introducing better quality own label ranges. This prompted a number of research studies that looked into the impact of similar packaging. A summary of this research is available here.

It is very difficult in the UK to take action against parasitic packaging. The designers of such packaging tend to ensure that they do not infringe intellectual property rights such as trade mark and design rights and a passing off action is very difficult and expensive to bring. The new Consumer Protection from Unfair Trading Regulations (CPRs), introduced in 2008, may help reduce the problem but this will depend on effective enforcement by the Office of Fair Trading and Trading Standards Services.

For clarity, a parasitic copy is not

• a fairly competing product that has its own distinctive identity and visual features;
• a counterfeit, which is an illegal product as it seeks to replicate the original brand by copying, amongst other things, its intellectual property.

The vast majority of products on the market, including retailers' own label goods, are in distinctive packaging and do not trade off the reputation of familiar brands. Stamping out misleadingly similar packaging need not affect consumer choice - the products may remain on the market but in distinctive packaging that does not deceive shoppers.

For more information on parasitic copying, please contact us.