CHOICE supermarket special

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05.Aisle-way robbery

lawyers

CHOICE went shopping at our local Coles and Woolworths and picked up a trolley of private label and name-brand products. We even mistakenly picked up a private label product instead of the brand name we were after. 

But at what point does a private label product stop being a homage to a market leader and become a copycat? We showed our trolley-load to consumer psychologist, Adam Ferrier, and intellectual property lawyer Anny Slater, and they've shared their thoughts below.

GrainwavesGrain Waves

“Packaging colour probably influences consumer behaviour more than any other variable, hence it’s extremely important to be associated with a colour,” says Ferrier. 

“In my opinion, the use of green here, coupled with the very similar placement of the chips, looks very similar to Grain Waves, presumably so people consider Woolworths’ product instead.”

Radiant-gelRadiant Gel

Ferrier says: “The shape of a product can be an extremely important asset when building a brand. In this instance, the distinctiveness of one product shape appears to have been replicated by another, presumably in an attempt by Woolworths to signal to consumers that their brand is just like the other brand.”

BountyBounty Bar

“The product shot is hero on this packaging – Woolworths are saying their product is at parity,” according to Ferrier. “They’ve mimicked the ‘tropical’ theme probably to reinforce the ‘coconuttiness’ of the brand proposition.” 

“To prove the products are too similar, a court would consider the colours, artistic work and 2D representation of the coconut bar,” says Slater.

sunscreenSunscreen

“It seems one manufacturer has created a sunscreen that looks very, very similar to another,” says Ferrier. 

“They’ve used many of the key packaging elements to achieve this similarity, including product format, colours and approximate placement and shape of symbols.” Slater says the court would have to consider the significance of the colours orange and yellow to customers buying sunscreen, and the extent to which they associate them with the Cancer Council.

peanut-butterPeanut butter

“The fact that the background colours of the labels, the orientation of the integers and the caricature of the peanuts are all substantially different to the Sanitarium label would greatly influence a court’s view of any overall similarity,” says Slater. 

“It’s unlikely that any liability would attract to using words that describe the product, for example, ‘smooth’, or humanising a peanut if the result is substantially different.”

NutsNuts

“The nuts have borrowed the conventions of nut packaging, including showing lots of nuts spilling out,” Ferrier says. 

“They’ve also delineated between ranges with colour, using the same colours as others in the nuts market.” 

To make a judgment, the court would have to consider how snack food packaging is recalled by consumers, and the impact of product packaging colours on buying decisions, says Slater.

What the experts say

A home brand product that looks similar to an established brand will be more popular with consumers.
- Adam Ferrier, Consumer psychologist

In the world of product marketing, it’s not always what’s on the inside that counts. Colours, images and packaging shapes are all important visual cues that translate into purchasing decisions. 

Prior to the mid-2000s, when the supermarkets launched their mid- and top-tier home brand offerings, the selling point of private labels was a lower price, not designer packaging – there was no mistaking the bland look of a no-frills product. But things have changed.

Ferrier believes the move away from bargain basement-style generic packaging by the big two is in part designed to make consumers feel better about the products that go into their trolley. 

“If they’re buying a cheaper and inferior product, they don’t want to be reminded of that. The more the cheap and inferior product looks like the market leader or higher-quality product, the better people will feel about the purchase. So a home brand product that looks similar to an established brand will be more popular with consumers.”

Slater says that while there is nothing wrong with being inspired by a competitor’s work, the combined elements of some of the copycats we presented to her are “likely to give rise to confusion in the marketplace”.

Australia has legal protections in place to prevent companies using others’ trademarks or visual assets, but enforcing the law is difficult.

To hold private labels accountable would in most cases require manufacturers of branded products to take legal action.

When we approached several suppliers seeking comment on what we saw as copycat packaging, none were prepared to speak out against the supermarkets. When manufacturers’ best customers are also their biggest competitors, there’s a lot at stake for those who publicly break ranks.

Durkan claims he hasn’t had a single incident of customer confusion between copycat products and “wholeheartedly disagrees” with the claim that many Coles products attempt to mimic the goodwill of established brands. A spokesperson for Woolworths told CHOICE that although products with similar ingredients may have similar visual cues, its products do not breach the law.

It’s not just an unwillingness to upset the supermarkets that keeps manufacturers from taking legal action.

In the past, cases involving passing off and trademark infringements have had a sketchy success rate in the courts.

 

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