Brand Imitation and Passing Off in Supermarkets
In the competitive world of consumer products, branding is everything. Leading brands invest heavily in building and protecting their brand reputation and intellectual property (IP), a critical asset for maintaining customer recognition, trust, and loyalty.
Yet when you walk into budget-friendly supermarkets such as Aldi, Lidl and Asda, you are often met with own-brand products that bear a striking resemblance to some of the most recognisable market-leading goods.
This raises an important question: if big brands are heavily investing resources in IP protection, how do these lookalike products continue to appear on shelves? Let’s unpack the legal landscape behind this question.
Trade Marks & Passing Off
Trade mark legislation and the common law tort of passing off are the main legal tools available to protect a brand’s identity.
- Trade Mark Infringement: This occurs when a party uses a sign or logo that is identical or confusingly similar to a registered trade mark, in a way likely to mislead consumers. Trade marks are registered rights, so enforcement requires that the mark be officially registered.
- Passing Off: This is a common law protection for unregistered rights and occurs when one party falsely promotes their goods or services as belonging to another, harming the reputation of the original brand. A successful passing off claim requires the brand to show 1) that it has built up goodwill in the product, 2) that there is a misrepresentation leading consumers to believe the imitation is associated with the original and 3) that this has caused damage to the brand’s business or reputation.
Despite this, retailers like Aldi and Lidl manage to mimic the overall “look and feel” of branded products while (mostly) steering clear of direct infringement or actionable passing off. So how exactly do they stay on the right side of the law?
Mimicking vs Copying
Budget supermarkets have become skilled at suggesting familiarity without breaching IP laws. Their products usually avoid protected elements like logos or brand names. Instead, they:
- Use similar colour schemes, packaging shapes, or imagery;
- Choose brand names that subtly evoke the original;
- Arrange packaging in familiar ways to suggest equivalence.
This tactic leverages visual similarity without legally misappropriating protected intellectual property.
Functional Features Are Difficult to Protect
Under UK trade mark law, functional or descriptive features of packaging (like shape or colour for particular flavours) are not easily protected unless they have acquired distinctive character through use.
The courts have been reluctant to uphold rights in the shape of a bottle or a specific shade of colour unless consumers directly associate that shape or colour with a particular brand. Aldi and Lidl often exploit this legal grey area by replicating general product features that aren’t uniquely identifiable to a brand.
Clear Own-Brand Labelling
Despite the similarities, discount retailers usually make it clear that these are own-brand products, often with a lower price tag. They prominently display their own logos, which helps undermine any claim that the average consumer is likely to be misled or deceived. In fact, courts have found that shoppers in discount stores are often more price-conscious and discerning, and unlikely to assume they’re buying the premium product.
Case Law
- United Biscuits v Asda (1997)
This case involved a dispute over Asda’s “Puffin” chocolate biscuits, which closely resembled United Biscuits’ well-known “Penguin” bars in name, packaging, and product concept. Asda also used the slogan “Pick up a Puffin”, which implied a deliberate reference to Penguin. Although the court found that most consumers would not be directly confused when seeing the products side by side, it held that the overall similarity could lead consumers to assume an association between the two. Passing off was established; however, United Biscuits’ claim for trade mark infringement failed.
- Moroccanoil v Aldi (2014)
This concerned Aldi’s sale of a hair oil product called “Miracle Oil”, which had similar packaging and colour scheme to Moroccanoil’s premium hair treatment. Moroccanoil alleged passing off, claiming that Aldi’s product misrepresented itself as being associated with their brand and was taking unfair advantage of their reputation. The court found that Aldi had not misrepresented the product or misled consumers, as it was concluded that consumers would be aware that the two products are not associated. The case reaffirmed that visual similarity alone, without evidence of consumer confusion or deception, is not enough to establish passing off.
The Impact of Brand Imitation on Consumers and the Market
By adopting similar visual cues—colours, layouts, and designs—these supermarkets create an immediate association without infringing on trade mark rights. Consumers often view these products not as copies but as cost-effective alternatives, reinforcing their perception of value. In a marketplace increasingly driven by price sensitivity, many shoppers prioritize affordability over brand loyalty.
Navigating Legal Loopholes in Brand Imitation
Brand imitation thrives in a landscape where legal frameworks often struggle to keep pace with evolving marketing strategies. Retailers meticulously navigate the grey areas of intellectual property laws, carefully crafting their products to evoke familiarity without crossing the line into outright theft. This artful mimicry allows them to leverage consumer psychology, tapping into brand recognition while steering clear of legal repercussions. However, this raises important questions about ethical practices in branding, consumer trust, and consumer protection. While customers may benefit from lower prices, the blurred lines between imitation and original branding can lead to confusion and erode the unique identity that established brands have cultivated over time.
Psychological Impact of Brand Imitation on Consumers
The psychological impact of brand imitation on consumers is multifaceted, often manifesting in both positive and negative ways. On one hand, the presence of familiar visual cues can evoke a sense of comfort and trust among shoppers. When consumers encounter products that closely resemble their favourite brands, they may perceive them as safer choices due to the subconscious associations formed with trusted names. This phenomenon creates an illusion of reliability, allowing budget retailers to capitalise on established consumer habits without significant investment in marketing. On the other hand, the confusion stemming from brand imitation can lead to feelings of disillusionment and mistrust.
Summary
These supermarkets often opt in for imitating the leading brand products’ appearance such as colour, packaging layout as well as other visual elements rather than directly mirroring the brand name or protected logos. The strategy works because it stops short of deception.
The average consumer, when going to a budget shop like Lidl or Aldi, is aware of the own-brand products and the specific product name associated with them. The majority of shoppers are looking for the best deal and are alert as to the differences between own-brand and a leading product. In most circumstances, the Aldi and Lidl’s own-brand products will also be much cheaper than its market-leading competitor. In this case, the consumer is taken to understand that the cheaper alternative does not derive from, nor is associated with the leading brand. As long as there’s no confusion, and the imitation doesn’t cross the line into misrepresentation or infringement, the law tends to side with competition over protection.
Final Thoughts
Notwithstanding the above, we have seen some notable disputes arising as a result of the copying of products. Examples include:
- Charlotte Tilbury v Aldi (2019) : Charlotte Tilbury successfully sued Aldi for copyright infringement over a makeup palette that closely resembled her own.
- Thatchers Cider v Aldi (2024) : Thatchers successfully appealed a decision regarding lookalike cider branding, with the Court of Appeal ruling in their favour.
- M&S v Aldi – Light-Up Gin Bottle (2024) : M&S won a design rights claim against Aldi over a festive gin bottle that closely resembled its own.
- M&S v Aldi – Cuthbert the Caterpillar (2022) : M&S took legal action against Aldi over its Cuthbert the Caterpillar cake, claiming it infringed the iconic Colin the Caterpillar brand; the dispute was settled out of court in 2022, drawing widespread public attention to the issue of supermarket lookalikes.
These cases show that while budget retailers often win the legal balancing act, they don’t always walk away unchallenged. So the real question is: how far can supermarkets push brand mimicry before the courts decide they’ve gone too far?
Whether you’re a start-up launching a new product or an established brand looking to defend your identity, having a clear IP strategy is essential. From trade marks and design rights to enforcing against copycats, our team of experts is here to help you navigate the risks and secure your brand’s future. If you have any queries regarding the above, or would require our assistance with an alternative matter, please do not hesitate to get in touch with Lawdit Solicitors today.
FAQ
What are the ethical implications of brand imitation?
Brand imitation raises ethical concerns surrounding consumer deception and intellectual property rights. It may lead to confusion among consumers regarding product quality, ultimately eroding trust in genuine brands. Additionally, it challenges the principles of fair competition, impacting innovation and creativity within the market landscape while undermining established brand identities.
