You only need to walk the aisles of Aldi to witness firsthand the art of mimicking big-name brands and getting away with it.
How Nutella has not successfully fined or diminished the likes of Aldi’s ‘Nutoka’ remains a mystery. The same can be said for many of the discounter’s own brand products, which live off the premise that they offer a daringly similar product for half the price of their more well-established counterparts.
It is possible that household names – like Nutella – do not want to risk losing a trademark court-case that may ultimately pique the interest of the nation and end in negative publicity.
Adidas recently lost a court case against New York fashion designer Thom Browne after the sports brand sued the designer for mimicking its stripe branding. Months later in March, it seemed the sports giant learned its lesson when it withdrew a request to the US Trademark Office to turn down a Black Lives Matter (BLM) application for a trademark including three parallel stripes.
In both cases Adidas said it believed confusion would be created with its own 70-years-old three-stripe design.
Earlier this week, however, Lidl successfully triumphed over its better-performing rival Tesco when the High Court ruled that the UK’s number one supermarket chain must stop using its current Clubcard logo as it infringes Lidl’s trademark logo rights by taking ‘unfair advantage of it’.
Charles Russell Speechly’s head of brand protection, Charlotte Duly, dubbed the trial as “hugely significant for IP lawyers, those in the retail trade and members of the public at large.”
On the other hand, while most branding trademark issues seem to depict the big guys fighting amongst each other or picking on the little guys, M&S’ recent social media clash with The Craft Beer Co. saw a London pub chain publicly challenge the might of the iconic retailer by forcing it to remove a t-shirt from sale that supposedly “ripped off” its name.
Despite the speedy backdown from M&S however, IMD Corporate partner, Olexandr Kyrychenko, said that it would be “difficult” to argue that the two designs could be confused with one another.
So, how do well-known and less well-known brands not only get away with mimicry, but how do they avoid a PR and legal disaster altogether?
A legal perspective
Copycat products are often created by companies to take advantage of an established brand’s investment in marketing its successful product. While the products resemble the look and feel of the established brand’s product, the difference in product name generally allows them to “narrowly escape” liability.
Reddie & Grose associate Luke Ingleton and technical assistant Jasmine Walters both feel that ‘copycat’ ploys are “deliberate marketing strategies adopted by the supermarkets to attract consumers who are familiar with an established brand and the quality of the product they offer.”
“This approach makes it difficult for established brands to take action against copycat / lookalike products. For brands without a registered trade mark, they must rely on the tort of passing off to try to take the copycat product off the market. Passing off is extremely difficult and costly to prove.”
For brands to succeed in a trade mark infringement action, the brand owner must demonstrate that consumers would be confused as to the origin of the product, meaning brands must be able to furnish sufficient evidence of consumer confusion.
Using the Nutoka and Nutella example of ‘copycatting’, Ingleton and Walters note that today’s consumers are “savvy and highly aware” of own-brands, meaning it is unlikely that they would be confused between and Aldi product and a more established brand. “Consumers, who understand that Aldi produces own brand products, would not expect these two products to originate from the same company,” they added.
“Given the difficult in proving that consumers are confused as to the origin of copycat products, supermarkets are likely comfortable with the risk associated with offering these products and will continue to do so.
“To increase the prospect of successfully taking action against copycat products, brand owners should consider seeking registered trade mark protection for the packaging of their product as well as registered design protection for the overall appearance of the product.”
A branding perspective
Invicomm Agency creative director Danny Somoza feels that it is crucial to safeguard brands against plagiarism.
“Take the Adidas vs BLM case as an example, where the three lines are used in a way that poses potential confusion. It is highly likely that a significant portion of their target audience will understand that this message is produced by Adidas. Such a scenario could harm a brand’s reputation, and therefore, it is essential to protect their identity.”
On the other hand, however, Somoza notes that brands should not try to monopolise every detail.
“The best example is Cadbury’s trademark of their colour (Pantone 2685C),” he adds. “In my view, firms should not be allowed to own colours or other commonplace elements. We create new ideas out of combining evolving elements that have been already used. This is key to progress and creation of new ideas.”
“In copycat cases of brands or identity design, we should look at the cases independently and look for the intention and implications. Evaluate if there is reputational damage and a possibility of appropriation.
“Tesco decides to utilise Lidl’s colours in a supermarket space and a yellow circular shape and doesn’t acknowledge the fact that users will relate this product to Lidl. Or are they intentionally doing it to position their Clubcard for more affordable products?”
The creative director also believes that creating new products in a fast-moving world is a enormous risk for companies. “They frequently resort to copying each other to alleviate competitive pressure,” Somoza notes. “M&S sued Aldi, but that caterpillar cake was in Co-op, Tesco, Morrisons, Waitrose, and Sainsbury’s… Couldn’t anyone come up with a Snake Cake? It might have even been more popular, but it will be risky, very risky.”
Somoza recognises that the issue is that companies are eager to touch the “same hearts”.
“All brands aspire to be relevant, but they can’t always be the main attraction, sometimes it should be okay to see others succeed, without taking part. But, this never happens in the world of business.
“I believe that social media is a significant contributor to the rise in plagiarism. Once a design goes viral on social media, it becomes unstoppable. It is only a matter of time before multiple brands create numerous copies, with the original creator typically getting lost in the mix.
“Unfortunately, we live in a society that promotes diversity, but has never been less diverse.”
