'Parasitic packaging' must be stamped out
The European Commission has also condemned the practice of copy-cat packs. In a study last year into the effects of own-label brands on innovation and small firms it was highly critical of parasitic packaging. It has also commissioned a study into legislative tools in Member States to combat parasitic packaging, which is due out this month (September). The European Parliament also passed a resolution in July calling for a clampdown.
According to BBG director John Noble, shoppers do not want the wool pulled over their eyes. "Companies should be able to help both themselves and shoppers by stamping out misleading packaging," said Noble. "In the UK this is simply not possible."
But according to IP and media lawyer, Andrew Terry, at law firm Eversheds, UK companies do have the tools to stamp out copy-cat packaging, if they choose to use them. "The problem has been around for a long time and I don't think there is a current initiative that will tackle the problem face on," said Terry. "However, there is action that can be taken without the need for new legislation, using tools such as 'copyright protection'."
Last year Alison Bryce, a partner in the intellectual property law team at Maclay Murray & Spens told Food Manufacture that companies seeking redress against firms producing copy-cat versions of their brands were in a stronger position following a European Court judgement over copy-cat perfumes, which found in favour of L'Oréal (L'Oréal v. Bellure 2009).
According to Bryce the ruling stated that in some circumstances the brand owner "need only establish that the copy-cat branding creates a link in the mind of the consumer to the trade mark". She added: "They simply have to show that the copy-cat is attempting to ride on the coat tails of the big brand."
Another dispute between Diageo and Sainsbury, in which the latter agreed to make minor changes to its 'Pitcher's' drink after Diageo launched legal action for trademark infringement of its Pimm's brand, also demonstrated that brands were starting to gain in confidence, she added.
