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
New Articles
tvChristmas special reviewed
Arts and Entertainment
Wolf (Nathan McMullen), Ian (Dan Starky), The Doctor (Peter Capaldi), Clara (Jenna Coleman), Santa Claus (Nick Frost) in the Doctor Who Christmas Special (BBC/Photographer: David Venni)
tvOur review of the Doctor Who Christmas Special
peopleIt seems you can't silence Katie Hopkins, even on Christmas Day...
Arts and Entertainment
Jenna Coleman as Clara Oswald in the Doctor Who Christmas special
tvForget the rumours that Clara Oswald would be quitting the Tardis
Arts and Entertainment
Japanese artist Megumi Igarashi showing a small mascot shaped like a vagina
ebooksA year of political gossip, levity and intrigue from the sharpest pen in Westminster
Life and Style
Arts and Entertainment
Left to right: Stanley Tucci, Sophie Grabol and Christopher Eccleston in ‘Fortitude’
tvSo Sky Atlantic arrived in Iceland to film their new and supposedly snow-bound series 'Fortitude'...
Arts and Entertainment
The Queen delivers her Christmas message
newsTwitter reacts to Her Majesty's Christmas Message
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating

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

iJobs Job Widget
iJobs Money & Business

Selby Jennings: Oil Operations

Highly Competitive: Selby Jennings: Our client, a leading European Oil trading...

The Jenrick Group: Night Shift Operations Manager

£43500 per annum + pension + holidays: The Jenrick Group: Night Shift Operatio...

SThree: Trainee Recruitment Consultant - LONDON

£20000 - £25000 per annum + OTE £40,000 + Car + Pension: SThree: SThree are a ...

SThree: Trainee Recruitment Consultant

£20000 - £25000 per annum + OTE £35K: SThree: We consistently strive to be the...

Day In a Page

A Christmas without hope: Fears grow in Gaza that the conflict with Israel will soon reignite

Christmas without hope

Gaza fears grow that conflict with Israel will soon reignite
After 150 years, you can finally visit the grisliest museum in the country

The 'Black Museum'

After 150 years, you can finally visit Britain's grisliest museum
No ho-ho-hos with Nick Frost's badass Santa

No ho-ho-hos with Nick Frost's badass Santa

Doctor Who Christmas Special TV review
Chilly Christmas: Swimmers take festive dip for charity

Chilly Christmas

Swimmers dive into freezing British waters for charity
Veterans' hostel 'overwhelmed by kindness' for festive dinner

Homeless Veterans appeal

In 2010, Sgt Gary Jamieson stepped on an IED in Afghanistan and lost his legs and an arm. He reveals what, and who, helped him to make a remarkable recovery
Isis in Iraq: Yazidi girls killing themselves to escape rape and imprisonment by militants

'Jilan killed herself in the bathroom. She cut her wrists and hanged herself'

Yazidi girls killing themselves to escape rape and imprisonment
Ed Balls interview: 'If I think about the deficit when I'm playing the piano, it all goes wrong'

Ed Balls interview

'If I think about the deficit when I'm playing the piano, it all goes wrong'
He's behind you, dude!

US stars in UK panto

From David Hasselhoff to Jerry Hall
Grace Dent's Christmas Quiz: What are you – a festive curmudgeon or top of the tree?

Grace Dent's Christmas Quiz

What are you – a festive curmudgeon or top of the tree?
Nasa planning to build cloud cities in airships above Venus

Nasa planning to build cloud cities in airships above Venus

Planet’s surface is inhospitable to humans but 30 miles above it is almost perfect
Surrounded by high-rise flats is a little house filled with Lebanon’s history - clocks, rifles, frogmen’s uniforms and colonial helmets

Clocks, rifles, swords, frogmen’s uniforms

Surrounded by high-rise flats is a little house filled with Lebanon’s history
Return to Gaza: Four months on, the wounds left by Israel's bombardment have not yet healed

Four months after the bombardment, Gaza’s wounds are yet to heal

Kim Sengupta is reunited with a man whose plight mirrors the suffering of the Palestinian people
Gastric surgery: Is it really the answer to the UK's obesity epidemic?

Is gastric surgery really the answer to the UK's obesity epidemic?

Critics argue that it’s crazy to operate on healthy people just to stop them eating
Homeless Veterans appeal: Christmas charity auction Part 2 - now LIVE

Homeless Veterans appeal: Christmas charity auction

Bid on original art, or trips of a lifetime to Africa or the 'Corrie' set, and help Homeless Veterans
Pantomime rings the changes to welcome autistic theatre-goers

Autism-friendly theatre

Pantomime leads the pack in quest to welcome all