No injunctive relief for copycat packaging

Nick Bowles Minster of State for skills today published a report on the enforcement provisions of the Consumer Protection from Unfair Trading Regulations 2008 (the “CPRs”). The report reviews the case for giving businesses a power to seek civil injunctions against ‘copycat packaging’ (packaging designed to give a product the ‘look and feel’ of a competing well-known brand).

The Miinister found views to be ‘polarised’…

“Certain brand owners argued that a lack of enforcement has resulted in consumers being misled and sales being diverted from brand owners, which they say reduces innovation and distorts competition. For retailers, these arguments illustrate that the case is driven not by consumer concerns but by commercial considerations; they consider granting the power could be anti-competitive while not benefiting consumers. Others noted the absence of consumer appetite for action, questioned the appropriateness of amending consumer law to facilitate business-to-business litigation, and doubted whether there is a material enforcement gap given existing powers to pursue action in respect of intellectual property infringement as well as passing-off. Public enforcers do not currently consider there is consumer detriment arising from similar packaging (and if there were, that it would be mitigated by access to quick and easy redress i.e. exchange of products bought in error). They are also concerned that granting the power would damage the integrity of the enforcement system”.

However following a full consultation the government decided “…there would be risks of unintended consequences if we changed the status quo, given the uncertainty around the evidence and the effects of the change, particularly in respect of the litigation that would result, and on enforcement. More generally, it would be difficult to reconcile granting this enforcement power with the Government’s deregulatory objectives”.

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