Last month the UK IPO published a study
it commissioned three IP academics to write on lookalikes.
Their task was to obtain empirical evidence on the effect of
lookalikes on both consumers and the market place.
issue of lookalikes is one that upsets plenty of brand owners
who complain that they spend millions of pounds on brand
building and package design only for their brands to be ripped
off by free-loading retailers. What is particularly galling for
them is that those doing the ripping off are their biggest
distributors. It is an audacious, and unusual, brand owner that
takes action against a supermarket chain.
So IP owners should be expected to welcome research that
tries to quantify the damage done to both themselves and to the
unwitting consumers who are misled into buying below-par
products. That’s certainly how industry
association the British Brands Group has presented the
John Noble, the Group’s director, wrote
this month that the findings "confirm extensive evidence
gathered since the early 1990s: 'Substantial proportions
(50-60%) of the UK, German and US populations report having
purchased a lookalike accidentally or mistakenly at least once
or twice’ and that similar packaging is
significantly correlated with perceptions of common origin and
higher expectations of price, quality and suitability for
But his analysis misses out some of the more interesting
evidence revealed by the report. First, that while some
consumers believe that similar-looking products have similar
product characteristics and similar origin, this so-called
"look-alike effect" is greater for people who do not buy those
type of products.
Second, that almost as many consumers that reported that
they had been disadvantaged by their unwitting purchase of
lookalikes said that they had benefitted from their
Third, the report revealed that the evidence to support
brand owners’ claims that sales suffered as a
direct result of lookalikes was quite weak.
This isn’t to
dismiss the anger brand owners feel towards lookalikes, and the
commercial hurdles – let alone the legal ones
– they face in suing their makers. But it does suggest
the value of empirical evidence and the danger of relying on
received wisdom when it comes to making policy.
Ultimately, brand owners say they want more power to tackle
lookalikes, including a right of private action. The authors of
the IPO report essentially agree: they say that giving brand
owners a "properly constituted private right of action" would
neither be restrictive for own-brand manufacturers nor open the
floodgates to litigation.
The authors cite favourably the example of Ireland, whose
law gives anyone the right to ask the courts to ban practices
that breach the country’s 2007 Consumer Protection
Act, which implemented the Unfair Commercial Practices
Directive. The courts can issue an injunction, but not
Since the Act was passed, however, only three cases have
been launched. Although the authors suggest that the law may be
still be a useful bargaining chip in pre-litigation
negotiations, there are two other interpretations of the low
numbers. First, that when given the chance, brand owners do not
care enough about the issue of lookalikes to put their money
where their mouth is – perhaps because, as the report
revealed, lookalikes do not pose as big a commercial threat as
brand owners sometimes suggest. Second, that regardless of what
the law allows them to do, brand owners will never sue their
biggest distributors. That’s an issue of
supermarket power, and one that changing the law on IP will do
very little to resolve.