Lookalikes on the table

Matthew Valentine follows the latest development in the copycat branding wars as the Government finally recognises the problem and considers measures to combat it.

Designers and brand-owners, struggling to gain recognition for the problems they say they suffer at the hands of rivals producing copycat products, will be encouraged this week by the discussion of the issue in Parliament.

UK politicians, it appears, are finally taking on board the fact that the country lags behind others in Europe when it comes to legislation protecting brands from copying. And while Government support for changes is in no way guaranteed, Labour ministers have discussed lookalike products with industry groups.

As Design Week went to press, Liberal Democrat consumer affairs spokesman Colin Breed was due to table a number of amendments to the Competition Bill, currently being discussed at standing committee stage prior to being subjected to a vote. He aims to raise awareness of copycat behaviour among politicians.

Breed’s involvement in copycat issues is not new. Last month saw the publication of a report, Checking out the Supermarkets – Competition in Retailing, which Breed commissioned. In it author Dr Shayne Mitchell writes that the success of lookalikes “depends on encouraging the shopper into thinking they are buying the original, or that the product is made by the brand manufacturer. Supermarkets argue that they do not intend to mislead shoppers, but this begs the question of why they use lookalike packaging.”

The report also deals with supply agreements, predatory pricing, and the impact major supermarket groups have on local communities.

Industry organisations Anti Copying in Design and the British Brands Group, which represent designers and brand owners over copycat issues, have both had input into Breed’s cause. “He has tabled an amendment which would protect the distinctiveness of packaging,” says John Noble of the BBG.

The amendments would outlaw “any act or practice which is likely to cause confusion”, or which “damages, or is likely to damage, the goodwill of another’s enterprise”. Similar amendments have previously been discussed in the House of Lords, although Breed has changed the wording for his attempt. Amendments are rarely accepted and added to a bill without strong cross-party support.

“The Government line on the Competition Bill is to implement articles 85 and 86 of the Treaty of Rome, which deal with cartels and market domination,” he adds. The BBG argues that competition bills are rare, and that the chance to clear up the issue of lookalikes is too good to miss.

The BBG and ACID recently presented a joint proposal to the minister for consumer affairs Nigel Griffiths, with a view to getting his support for the amendments. He requested a legal briefing on why the current law fails members of the groups, which was supplied.

“There is a category of members which we have had to advise not to take action [against copycat products],” says ACID solicitor Simon Clarke of law firm Theodore Goddard. “Under the existing law they would not succeed,” he says. Well organised copycats take legal advice to ensure that their products are just sufficiently different from the copied versions to put them into a grey area of the law, says Clarke.

A 70-page document outlining options for dealing with the copycat issue, again jointly produced by ACID and BBG, has now been presented for Government scrutiny. “It is too early to say whether the Government is in support of any amendment,” says Clarke, “but it certainly has an open ear.”

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