The Which? research, based on answers from 7,855 Which? members, found that a quarter of those surveyed have difficulty differentiating between the two in supermarkets and shops, accidentally buying own-labels as a result.
One example cited in the research was the similarity between McVitie’s Ginger Nuts and Lidl’s Tower Gate Ginger Nuts (see image above). Once the brand names had been removed, 39 per cent confused the Lidl version with McVitie’s.
Other own-brands that the research suggested beared an uncanny resemblance to branded labels included Aldi’s Snackrite Thick Ridged Crisps (similar to McCoy’s), and Lidl’s Newgate Cream of Tomato Soup (similar to Heinz).
A previous survey conducted by Which? in 2013 found that of those customers who bought an own-brand item by mistake, 38 per cent were annoyed and 30 per cent felt misled.
Legal professional Lee Curtis, partner and trademark attorney at law firm HGF, says the basic test for a design right infringement is whether the own-brand gives the same overall impression as the branded item.
He adds, however, that even if it does, many brand owners won’t take legal action. Curtis says: “Most of the main offenders for copying are big supermarkets. Brand owners will be scared of their commercial power and of being delisted – for many, supermarkets are their biggest customers, and they don’t want the hassle.”
Curtis says registering elements of your brand as a trademark is a more effective way of deterring others from copying: “The problem with unregistered design rights is you have to be able to prove you’ve been copied,” He says. “If you register as a trademark or design, you just have to prove it’s similar or that they’ve taken unfair advantage of the distinctive character of your packaging, by trading on the coat-tails of your repute and investment in advertising.”
Several brands have attempted to register elements of the branding as trademarks, including Cadbury, which last year lost a legal battle to secure exclusive rights to Pantone 3685c purple in chocolate packaging.