Some big brands are apparently set to take “copycat” brand owners to court, allegedly fired up by “powerful new evidence”. They would do well to remember Charles Dickens’ observation that: “The one great principle of English law is to make business for itself.”
Previous court decisions give no comfort to anyone attempting to prove consumers have been misled by copycat brands to the point of making the wrong buying decision. Nor does the application of competition policy by the Competition Commission. In its 2007 report on grocery supply, it reviewed research that concluded that while there was some degree of association drawn from packaging, there was no clear evidence of confusion and mistaken purchase.
More broadly, the Commission said levels of own-brand penetration varied widely within and between different categories and had both increased and decreased over time. There was no evidence own labels had deterred innovation by brands and, own brands were themselves a source of innovation. The presence of own labels, therefore, including copycats, had had no adverse effect on competition.
” The presence of own labels had had no adverse effect on competition”
The Consumer Protection Regulations 2009 define a misleading action as one that “causes or is likely to cause the average consumer to take a transactional decision he would not otherwise have taken”. So the challenge for lawyers is the same as ever - to get someone to admit in courtthat they made the wrong buying decision as a result of a copycat brand. No cases have as yet been brought under these regulations, which the BBG now wants the government to “tighten up”.
The recent Mountainview methodology may also be challenged. It asked 35 consumers to recognise four key brands flashed on an LCD screen against four copycats, four non-copycat own brands and four “filler” brands. Recognition was slower for the copycats.
Yet the lawyers involved warn against “asking the consumer to consider … two product presentations in an environment devoid of the influences” of a real shopping environment. The Competition Commission said the same. Defence lawyers must be raring to go.
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