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Have the copycats gone too far?

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Have the copycats gone too far?

Oscar Wilde said “Imitation is the sincerest form of flattery that mediocrity can pay to greatness”. True words indeed, but it is a fine line between using someone or something as a model and just copying their work.

Back in the 1970s and 1980s when ‘convenience foods’ first burst on to the grocery scene, the most innovative food retailer of them all, Marks & Spencer, would work with its biggest suppliers, such as Northern Foods and United Biscuits, to introduce genuinely innovative products which had never been seen on supermarket shelves before.

M&S had several abortive trials of wrapped sandwiches before these took off and became a staple of working lunches. Soon after, the chilled aisle exploded with new products with short shelf-life such as quiches, ready meals, soups and desserts. Some of these were extremely complicated like the trifle, with multiple layers, then made at Dale Farm Foods in Rawmarsh, South Yorkshire (sadly, no longer there).

From those early beginnings, of products with which consumers were reasonably familiar, came more adventurous cuisines such as Italian, Chinese, Indian and Thai. Before long dry pasta was not good enough and it had to be made fresh. M&S rightly built up a reputation as THE place to shop for those prepared to pay a bit extra for quality and freshness.

The key to M&S’s unique early success was that it had the best distribution system. Products made by its suppliers today would be delivered into the retailer’s distribution centres this evening, picked overnight and delivered into store to be on the shelves tomorrow. This allowed for products with just a few days shelf-life, such as sandwiches, to be viable without generating masses of waste. Only banana sandwiches failed the test!

It took the mainstream grocery retailers like Tesco and Sainsbury’s many years to develop a distribution network which allowed them to handle similar chilled products. It was no surprise that these retailers soon started looking for manufacturers to produce their own versions of beef lasagne and chicken tikka masala. Whilst this caused some tensions for existing M&S suppliers, the passage of time made most of these equivalent, own label products less sensitive.

Where imitation raises serious concern is with so-called ‘copycat’ products which not only look very similar to existing, established products (and may carry comparable names), but are packaged in such a similar way as to run the risk that consumers will either mistake the copycat items for the real thing, believe they are of equal quality, or think they have been manufactured in the same factory as the original.

As these copycat products are often sold at a significantly lower price than the authentic version, these understandably cause major irritation for the innovators whose creativity came up with some really outstanding food and drink. Copycat cases have also extended into non-food items such as perfumes and toiletries.

One of the most high-profile cases saw Aldi introduce Cuthbert the Caterpillar in competition with the original M&S cake, Colin the Caterpillar. Whilst other retailers had their own versions of a caterpillar cake, M&S argued that the Aldi design would confuse customers and damage its own, substantial sales.

Like many legal actions of this sort, the claim by M&S that Aldi had infringed its intellectual property was settled out of court earlier this year. There seems to be a clear reluctance for these infringement cases to come to court and risk creating a legal precedent.

Sometimes copycat cases may involve an infringement of a competitor’s trademark, but often they fall into the less clear-cut area of ‘passing off’ where consumers are likely to be confused about what they are buying. This might arguably be the case with products carrying a similar name, such as a spread called Norpak in a tub similar to Lurpak. Some of the biggest branded food companies have been particularly susceptible, such as Kelloggs Rice Krispies or McVitie’s Digestives.

The use of strikingly similar packaging design can be particularly confusing and last year Hendrick’s did bring a case to Scotland’s Court of Session to prevent Lidl selling its Hampstead Gin. The Judge said it was “difficult to view (Lidl’s redesign of Hampstead Gin), including the change in colour of the bottle, as accidental or coincidental”. The Judge also spoke of Lidl “riding on the coat tails” of the Hendrick’s product.

The cases keep on coming with cider company Thatchers recently claiming that Aldi’s Taurus Cloudy Cider Lemon is a copycat of its own Cloudy Lemon Cider. Following a similar “coat tails” argument to the Hendrick’s case, Thatchers claims that the discounter has taken “unfair advantage” of its brand reputation.

For as long as the sales justify the potential legal actions against them, some retailers will continue to take advantage of the innovation of other branded players in the market and consumers may be happy to pay lower prices for products which look broadly similar. Is your child too bothered whether he or she gets a Colin or a Cuthbert caterpillar cake at the birthday party?

But does this miss the point that innovation is the lifeblood of the food industry and is what makes consumers keep coming back? At a time of cost-of-living crisis, customers may be more focused on price than quality, but why should manufacturers continue to spend large sums on product development only to see their products “mimicked” at modest cost by competitors? This is an area which is likely to keep the courts busy (as if they are not busy enough!).

This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.
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    Written by Julian Wild