Breaking news: On 13th October 2015 the Government announced its response to the public consultation undertaken in 2014. The Group's initial response to this announcement can be found here.
Parasitic (or copycat) packaging is used by competitors to boost sales by confusing and misleading consumers. Distinctive features of a familiar 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.
A selection of products packaged unnecessarily similarly to popular branded products were identified during store visits during the latter part of 2011 and early 2012. This selection can be viewed here and a press release accompanied its publication. (A similar survey was undertaken in 2010 which can be viewed here along with its accompanying press release).
The UK's Intellectual Property Office (IPO) commissioned the Intellectual Property Institute to study the problem, with its report published in 2013. This summarised existing research and undertook its own research, confirming that consumers buy products in similar packaging by mistake and in large numbers and that the similar packaging provokes assumptions about the origin and quality of products that may be incorrect, prompting transactional decisions that would not otherwise be made. The study can be found here and the Group's review of it here. The Group has worked with the IPO to reach a common understanding on what the evidence does and does not tell us. This common understanding can be found here.
In terms of its own most recent research, in 2009 the Group commissioned BMRB to study the impact on shoppers of similar packaging. 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.
Copying the packaging of familiar brands with strong reputations has been around for some time, becoming widespread since 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 Consumer Protection from Unfair Trading Regulations (CPRs), introduced in 2008, have provisions addressing misleading practices but these are not being enforced by the authorities (companies are not able to use the Regulations themselves to bring civil rights of action).
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 or competition - the products may remain on the market but should be re-packaged in distinctive designs that do not deceive shoppers.
For more information on parasitic copying, please contact us.