A watchdog for the copycats

Supermarket brands packaged like the top sellers are under scrutiny, says Nick Walker

Last week, during my weekly shop, I stopped in the toiletries aisle and reached for the familiar white shampoo bottle with its familiar green top, its familiar swirl around the logo, around the familiar name ... or not. Instead of my usual shampoo, I found myself holding a supermarket changeling. I felt duped. I wanted Timotei, I got Sainsbury's Johara. Stooopid.

This is exactly what I was, at least, according to Nigel Matthews, group secretary of Sainsbury's. "You would have to be pretty stupid to confuse the two products. Ours clearly says Sainsbury's. We don't think consumers are that stupid." Fair enough. Matthews is supported by a weight of research. According to the Consumers' Association, only 3 per cent of shoppers mistakenly basket lookalike products - or indeed branded products.

An own-brand product with a similar shape, size, colour or logo to the brand-name equivalent is perfectly legal as long as it doesn't confuse or deceive the consumer. This, some say, is the problem. Most other European countries have an unfair competition law. We don't. Customer confusion is not easy to prove. Neutrogena's recent successful case against Neutralia was boosted by customer complaints that attributed an advertisement for Neutralia (in which a nipple was bared) to Neutrogena. Even with this evidence, teams of lawyers still thronged outside supermarkets, waving affidavits at passing shoppers.

Most cases don't reach the courts. Sainsbury's tweaked the design of its Classic Cola cans after complaints from Coca-Cola, just as the supermarket shifted the position of a red mug on the label of its Full Roast Coffee after protests from Nestle. It is, say the brand owners, a case of supermarket sees, supermarket does what it can get away with.

But the on-going battle between supermarket and brand manufacturer could be entering a new chapter. Today sees the announcement of a new code of conduct to control lookalikes. The code comes a week after the British Producers and Brand Owners Group (which failed to have lookalikes banned in last year's Trade Mark Act) repackaged itself in the form of the British Brands Group. The new code has been brokered by the Institute of Grocery Distribution, a body that represents both retailers and manufacturers, along with six members of the British Brands Group.

It is understood that the code involves a dispute procedure. Where the parties still cannot agree, cases will be passed to arbitration. The code is thought to contain guidelines on how far retailers can go in copying colour schemes for own-label product packaging, although any list of dos and don'ts is highly unlikely. "With so many new products coming out, it can be very easy for a manufacturer or a retailer to put their foot wrong," says John Beaumont, chief executive of the institute. "Legal proceedings are not really the way professional organisations should be carrying on."

The supermarkets say the code is merely a reflecting process of negotiations they have been respecting for years. Brand manufacturers, on the other hand, are flexing their muscles and proclaiming victory over retailers, who, they say, only a couple of years ago were refusing to acknowledge there was an issue to be addressed at all. Some in the industry fear the code itself may be useless in any case. It has been noted that the membership of the committee that drafted the code was limited. Others have remarked that the retailers are not going to commit themselves to anything too onerous, pointing out that Tom Vyner, joint managing director of Sainsbury's, is this year's president of the Institute of Grocery Distribution.

According to a survey by Mintel published last week, brand owners are failing to convince consumers, particularly the young, of any difference in quality between big-name brands and supermarket own-label products. The new code may be a step in the right direction for brand manufacturers, but with the rise and rise of the supermarket, there is still a long way to go.

What the law says

Passing off is when you filch a competitor's trade by misleading conduct. Who is misled or how doesn't matter. You have to be able to demonstrate that your products have got the "goodwill" of the customer and that they have a reputation. Passing off has got nothing to do with unfair competition. It's very hard to win a case for passing off. The evidence is critical and is often hard to obtain. You have to act very quickly in passing-off cases to get an injunction, but this is very risky as the trader or manufacturer you are suing can claim damages for lost trade if you don't win.

Patents In order for something to be patented it has to be original in some way and an improvement on whatever similar product or process there was before, such as the means of putting a milk carton together. Patents are very expensive to obtain, and usually it is not worth applying unless you have the money to do so internationally and cover every potential market.

Trade marks Any mark distinctive of a product that is capable of being registered can be a trade mark. Generic words and laudatory words are not allowed - The Really Good Tomato Sauce, say. The theory is that no one can privatise words of the English language. Under the Trade Mark Act 1994, anything that is capable of graphic representation can be registered with the Registrar of Trade Marks, but the process can take at least 18 months.

Start your day with The Independent, sign up for daily news emails
ebooks
ebooksAn introduction to the ground rules of British democracy
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
SPONSORED FEATURES
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs Money & Business

SThree: Trainee Recruitment Consultant

£20000 - £25000 per annum + competitive + incentives + uncapped comms: SThree:...

Recruitment Genius: Telesales Executive - OTE £25,000

£13000 - £25000 per annum: Recruitment Genius: Would you like to be part of a ...

SThree: Trainee Recruitment Consultant

£20000 - £25000 per annum + competitive: SThree: Are you passionate about sale...

Ashdown Group: Graduate Developer (Trainee) - City, London

£25000 per annum + benefits: Ashdown Group: A large financial services company...

Day In a Page

The Silk Roads that trace civilisation: Long before the West rose to power, Asian pathways were connecting peoples and places

The Silk Roads that trace civilisation

Long before the West rose to power, Asian pathways were connecting peoples and places
House of Lords: Outcry as donors, fixers and MPs caught up in expenses scandal are ennobled

The honours that shame Britain

Outcry as donors, fixers and MPs caught up in expenses scandal are ennobled
When it comes to street harassment, we need to talk about race

'When it comes to street harassment, we need to talk about race'

Why are black men living the stereotypes and why are we letting them get away with it?
International Tap Festival: Forget Fred Astaire and Ginger Rogers - this dancing is improvised, spontaneous and rhythmic

International Tap Festival comes to the UK

Forget Fred Astaire and Ginger Rogers - this dancing is improvised, spontaneous and rhythmic
War with Isis: Is Turkey's buffer zone in Syria a matter of self-defence – or just anti-Kurd?

Turkey's buffer zone in Syria: self-defence – or just anti-Kurd?

Ankara accused of exacerbating racial division by allowing Turkmen minority to cross the border
Doris Lessing: Acclaimed novelist was kept under MI5 observation for 18 years, newly released papers show

'A subversive brothel keeper and Communist'

Acclaimed novelist Doris Lessing was kept under MI5 observation for 18 years, newly released papers show
Big Blue Live: BBC's Springwatch offshoot swaps back gardens for California's Monterey Bay

BBC heads to the Californian coast

The Big Blue Live crew is preparing for the first of three episodes on Sunday night, filming from boats, planes and an aquarium studio
Austin Bidwell: The Victorian fraudster who shook the Bank of England with the most daring forgery the world had known

Victorian fraudster who shook the Bank of England

Conman Austin Bidwell. was a heartless cad who carried out the most daring forgery the world had known
Car hacking scandal: Security designed to stop thieves hot-wiring almost every modern motor has been cracked

Car hacking scandal

Security designed to stop thieves hot-wiring almost every modern motor has been cracked
10 best placemats

Take your seat: 10 best placemats

Protect your table and dine in style with a bold new accessory
Ashes 2015: Alastair Cook not the only one to be caught in The Oval mindwarp

Cook not the only one to be caught in The Oval mindwarp

Aussie skipper Michael Clarke was lured into believing that what we witnessed at Edgbaston and Trent Bridge would continue in London, says Kevin Garside
Can Rafael Benitez get the best out of Gareth Bale at Real Madrid?

Can Benitez get the best out of Bale?

Back at the club he watched as a boy, the pressure is on Benitez to find a winning blend from Real's multiple talents. As La Liga begins, Pete Jenson asks if it will be enough to stop Barcelona
Athletics World Championships 2015: Beijing witnesses new stage in the Jessica Ennis-Hill and Katarina Johnson-Thompson heptathlon rivalry

Beijing witnesses new stage in the Jess and Kat rivalry

The last time the two British heptathletes competed, Ennis-Hill was on the way to Olympic gold and Johnson-Thompson was just a promising teenager. But a lot has happened in the following three years
Jeremy Corbyn: Joining a shrewd operator desperate for power as he visits the North East

Jeremy Corbyn interview: A shrewd operator desperate for power

His radical anti-austerity agenda has caught the imagination of the left and politically disaffected and set a staid Labour leadership election alight
Isis executes Palmyra antiquities chief: Defender of ancient city's past was killed for protecting its future

Isis executes Palmyra antiquities chief

Robert Fisk on the defender of the ancient city's past who was killed for protecting its future