I bought a copycat product by mistake

by , Senior Home Researcher Consumer Rights 12 April 2013
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Have you ever got your shopping home, to find that a big-name branded product you thought you’d picked up was actually an own-label lookalike? It’s happened to me, and our new research shows I’m not alone.

Lookalike supermarket products

Own-label products that look like well-known brands are far from rare. In our investigation into lookalike packaging, we found over 150 products from Aldi, Asda, Boots, Lidl, Morrisons, Sainsbury’s, Superdrug and Tesco that we think look all too familiar.

That might be why a fifth of Which? members have bought a ‘copycat’ product at least once.

It’s easy to do, especially if you’re in a rush, as I was when shopping in my local Lidl a few months ago. I grabbed a bottle of what I thought was Sarson’s Malt Vinegar off the shelf, only to get home and discover it was actually Samson Vinegar, a Lidl own-label product.

Bubble bath lookalikes

Not stopping for long enough to notice the finer details of the bottle, I’d simply picked up on the fact that the Samson and Sarson’s labels are the same shade of brown, and have remarkably similar names. Though on reflection, the fact that it cost about 30p for a large bottle probably should have been a clue that I wasn’t buying a well-known brand.

Are lookalikes a good thing?

On the one hand, I felt a bit foolish for having bought the wrong product, and certainly thought it was cheeky of Lidl to sell something so similar to the brand leader. But really, things hadn’t worked out too badly for me – I’d only spent around 30p on my mistake, and the vinegar turned out to be perfectly adequate. At that price, and without being able to identify much of a difference between the two products, I’ll probably try it again.

When we asked our members what they thought of ‘copycat products’, many recognised that they can be both a good and a bad thing for consumers. One said:

‘Own-brand products should be distinctly marked to display that they are own-brand. To use the same colours, images and shapes as the market leaders do is, to me, confusing the consumer.’

But another said:

‘Similar packaging actually assists me in finding the type of product I am shopping for.’

Many felt that while some own-label products can’t match up to the brands on quality, other own-label products are just as good as the brands, and are often cheaper.

Have you been caught out by lookalike packaging, and how did you feel once you found out? Have you spotted some own-label products that you think go too far in mimicking a leading brand?

What do you think about shops copying branded products?

I think it’s fine – they’ve never confused me (56%, 298 Votes)

I think it’s wrong – they shouldn’t piggy-back on other brands (44%, 227 Votes)

Total Voters: 531

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154 comments

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wavechange

I believe I have only done this once. I bought four cans of soup in plastic wrapper. I wanted to have something in the house for when I came back from holiday. When I unwrapped the cans they were Tesco soup rather than one of the well-known brands, and looked very different.

I am not sure about these copycat products. On one hand it is despicable deception and on the other it is encouraging the consumer to try another product that could be cheaper and better.

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Walter

Who is doing the encouraging here? I’m mystified by how poorly ‘the consumer’ understands the way business works. Who the players in the supply chain are and who delivers value.

In your example the cans looked different so where is the deception?

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wavechange

The individual cans looked very different but the multipack looked more similar to a well known brand. At least my mistake saved money.

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John Ward

I think I have fallen for this on one or two occasions. Not a problem as the product was satisfactory but I did feel a bit cheated. It has made me more careful in selecting products because sometimes I specifically want the own label [especially in Sainsbury's] rather than the major brand. The other day I noticed in Tesco there was an offer on Dettol anti-bac bathroom cleaners in a range of flavours but right alongside was the equivalent Tesco cleaner that looked very similar. It was only when I lifted it off the shelf that I noticed the higher price on the shelf label so I returned it and took the Dettol products. Sometimes the packaging is so close to being identical that I can’t believe it’s not coming from the same factory and I am convinced the major brand manufacturers are sometimes colluding in this “deception”. Imitation is said to be the sincerest form of flattery, so it’s not surprising that some supermarkets are even mimicking the look-alike packaging of their rival retailers. Unless a major brand has a very distinctive trade mark or logo [eg the Kellogg's "K" or the Heinz shield] that it sustains over a very long period, the consumer can soon forget what the original brand looks like making the trickery even more effective.

I have to say I’m actually a fan of own-label products, whether they’re copycats or not. I’ve got more of a problem with the big brands using their name to ‘justify’ massively inflated prices. In most cases, own-label products are perfectly good substitutes, if not better, and I don’t feel at all deceived by the imitation packaging.

John – you make an interesting point about products potentially coming from the same factory but being priced/branded differently. I was once told by a certain retailer that this actually is the case for some products. Since then, I’ve been very wary of relying purely on a brand name when choosing between similar products.

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John Ward

Some time ago Sainsbury’s were running an offer or competition on their BiskWheatoes or whatever they were called – their copy-cat Weetabix. This had a return address in Kettering. Kettering just happens to be the home of Weetabix, and is probably the only factory in the UK making this type of cereal product in biscuit form.

Very eagle-eyed of you! It wouldn’t surprise me if this was the case, especially given the ‘insider info’ that I mentioned in my last post – clearly this is happening to some extent, and is arguably more worrying than imitation packaging alone!

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Pam

Many years ago I worked in a factory that manufactured cornflakes. The only brand we didn’t pack was Kellog’s. Every other brand you could think of was packed from the same hopper. At the time a certain upmarket supermarket thought they were getting better cornflakes than everyone else and consequently charged more for them. I did not eat cornflakes for years after leaving there!!

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Walter

They don’t use their names to justify high prices. You have this topsy turvy. You know their name because they advertise and generally have more expensive raw materials and packaging. The only reason you have tried imitating brands is because they imitate. So they get to charge less by my saving on marketing but still get your custom. Can u not see this?

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william

Personally no, but know of people who have. But it does annoy me that I need to be on guard (over and above all the other tricks and traps that supermarkets employ) when doing my shopping. If their products were OK they wouldn’t need to try to trick people into buying them.

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svoburner

Personally I think this investigation is a waste of time with respect to Aldi or Lidl (what about cash’n'carry?) – you don’t go into these stores expecting to buy a big-name branded product!

Aldi and Lidl do sell some big-name brands, though admittedly not that many. I think my experience shows that you can still get caught out in those stores – or am I alone on this?!

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svoburner

On a lighter note, at the office we find it highly amusing some of the own brand names that Aldi and Lidl come up with (these immediately spring to mind):

Lidl: Crusti Croc (crisps), Cocos & Chocos Minis (Bounty)
Aldi: Monster Claws (Monster Munch)

:-)

They’re brilliant aren’t they – Lidl’s ‘Snacky Cracky’ (cream crackers) is my particular favourite.

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Geoff

We come up with our own versions of the names, so we call Aldi’s “Wotsit” look-alikes “Notsits” and their beef stock cubes “Noxos” etc

Aldi’s Quixo gravy (looks just like Bisto) and Asda’s Beastie Bites (Monster Munch) are the most inventive names, I think :)

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Phil

My favourite was the DIY shed that sold it’s own brand “No More Nails” adhesive under the brand name “I Can’t Believe It’s Not Nails”.

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Nick

…you need to open your eyes perhaps? these products offer great value (reason alone to know its not the premium brand) are sometimes better than braned and stop consumers being ripped off, which should be applauded by Which. Unless its counterfiet goods (a different issue) I cant see anything wrong with this

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wavechange

And here was me thinking that Crusti Crocs are strange plastic shoes covered in mud.

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fonetic

Several alternative products in Aldi and Lidl have turned out to be better quality and a bit cheaper than the more expensive branded products found in Tesco and others.

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Lewis

Its almost counterfeit goods though and that’s the problem. They are just slightly different. It’s clear they are attempting to copy higher quality, better known brands with the intention of deceiving the customer for financial gains. If someone sold you a fake Rolex they try to pass off as the real thing they would be convicted of fraud. If someone was passing off a set of boots calling them Ugg boots when they’re actually not made by the company that is again fraud.

The price being cheaper don’t make it acceptable and has nothing to do with mitigating fraudulent deception like this. They should just make the packaging different. Its not that hard.

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PHil

Interesting article. As long as it does not come close to counterfeiting I’m not that bothered by it. The similarity helps with identifying alternatives.

I can’t quite see bringing up the Aldi and Lidl products, you should know you are in those shops and presumably went there to by the cheaper copycat products (as opposed to packaging).

Now adjacent products in the likes of Tesco and Sainsburys which are close enough to overlook at a glance is another matter. Having said that I’ve never been caught out by such practices.

Somehow I think the supermarkets make more from the branded products so surely they don’t want them to get too close, just enough to indicate them as an alternative.

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Bob

Retailers should only be able to sell their own label goods in plain white packaging using their brand colour and typeface for any text. It should be displayed in dedicated isles to segregate it from branded goods to stop them trying to pull yet another ‘con’ by luring customers into buying it by accident.

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fonetic

“dedicated isles” – I don’t want to have to drive to the coast then get on a boat to go buy this stuff. :-)

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Geoff

I don’t really have a problem with this in stores like Aldi, because I expect pretty much all their products to be own-brand anyway.

In fact in these cases the look-alike packaging is useful because it indicates which branded product they are aiming to replicate.

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Walter

By copying the trade dress of brand leaders, budget consumers can pretend to their guests that they buy high quality. This is unfair on brands who should be given a huge space to differentiate themselves. People would not buy these copies if they were in plain packaging. Ergo own brand sales are stolen from brands.

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wavechange

Do the brand leaders produce the best quality products? Sometimes but not always. Have a look at the Which? reports.

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Walter

Again irrelevant. If the copycats are better, that’s great. Now they can let people know about their new product by creating a brand and spending money marketing it.

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wavechange

Which product is better might not be relevant to you, but it is relevant to most customers.

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fonetic

In many cases you’re just paying for the well known name. In the recent “horsemeat sold as beef scandal” the complex trading network for meat was revealed as was the fact that the same source of meat sold to multiple manufacturers and retailers – budget and brand name alike.

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T. Calvert-Linnell

Very recently, at Boots, bought a pack of my favourite tissues – Lotus Olbas ones. In the familiar orange/green covers..except they weren’t what I meant to buy- instead, a new product with a near identical colourway. The Olbas tissues seem to have disappeared from the store (have tried other Boots, elsewhere). A small (t)issue in the scheme of things, I know, but annoying and manipulative all the same – and therefore misleading. Always look at the label has become yet another new imperative..

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Nick

No I havnt been misled because i’m not stupid

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Em

So the criteria for entitlement to better consumer protection is to be intelligent and have good eyesight. Thanks for clearing that up.

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wavechange

Alternatively, I wonder how many don’t even realise that they have bought copycat products.

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Nick

Dont be ridiculous. People deserve protection but when someone in Aldi buys Choco Rice and then gets home feeling hard done to when the realise its not Coco Pops it’s hard to feel any sympathy. You dont need everything spelt out to you letter by letter-take some responsibility yourselves

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gradivus

Nick.

My thoughts exactly.

What worries me most here is the revelation at the end of the intro that only 56% of people have ‘never been confused’. That means 44% of people (i.e. almost half) have trouble understanding the label on a box of cornflakes!!

That frightens me. There will be some, of course, with poor eyesight, etc, but are we really living in a country where so many people are so stupid?

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fonetic

“are we really living in a country where so many people are so stupid?”

Yes.

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richard

Nope – I always READ the labels – as I was taught to do at school by my form master during form periods (it was a good school)

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Em

I’m less bothered where similar packaging is sold side-by-side. It should be evident there is a cheaper(?) alternative to the branded product on offer. What I don’t like to see is a store selling just a copycat-labelled product at the branded price. Clearly an attempt to cheat the customer.

I don’t notice this problem with Waitrose – any examples? Perhaps they are confident that their own-branded products will make it without the benefit of plagiarism.

Where I do find a problem is where I end up with the “low-fat” or “reduced-fat” version of otherwise identically branded products at an identical price. The reduction in fat (what I’m paying for, particularly with dairy products) is usually acheived by substituting cheap starch and other chemical thickeners.

Hi Em,

We didn’t find any examples in Waitrose – but if anyone else has spotted any, please let us know!

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Tom

If own label products are as good as branded why do supermarkets copy the packaging or is it that they are not confident about marketing their own products. Why not legislate for products to be labelled by who produced them rather than who they were produced for. This would back- up an earlier comment on cornflakes coming out of the same hopper for everyone apart from Kellogg’s who if I remember correctly had a catch phrase “if its not Kellogg’s on the box it’s not Kellogg’s in the box” If this is acceptable why do Trading Standards have a problem with fake products after all they are slightly different from the big brands.

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wavechange

Kelloggs has consistently ignored health concerns about its breakfast cereals, particularly over their sugar content. Those cornflakes are only fortified with vitamins because the processing destroys those that were present in the first place. And as for fibre, you would be better off eating the box. Perhaps the copycat products are no better, but I think we should blame market leaders such as Kelloggs for encouraging children and their parents to eat unnecessarily processed foods.

For ethical and other reasons, Nestle products are best avoided too.

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Tom

My point is that if you knew who produced the product in the first place you could avoid the copycat label as well.

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wavechange

I think it would be better to boycott the highly advertised market leading producer of unhealthy foods. If Kelloggs (for example) decided to pay notice to the criticism of its products and produce more healthy alternatives, the supermarket brands would change too. If a supermarket own brand made the first move, there might be praise from Which? and other organisations with an interest in our health, but the large brands would not change. I am not suggesting that all well-known brands of foods are unhealthy, but some of the top names could do a lot better.

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Tom

You seem a little fixated on Kellogg’s to the detriment of the wider discussion. Supermarkets bully suppliers into providing own label products by threatening to delist their product. A lot of research goes into getting the product right but if copycat products take advantage of not having any research and marketing costs then innovation will stand still.
Check your High Street where are the Dairies, Greengrocers, Pubs, Card Shops and a host of other consumer services. The supermarkets won’t be allowed Betting Shops and Charity shops which is what we will be left with

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wavechange

I think we will have to agree to disagree, Tom. If the large brands were to stop spending a fortune on advertising (which the customer has to pay for) and use their skills at innovation to produce healthier products I would have more sympathy. I am not saying that all of the big brands are poor, but some of them do little to help us lead a healthy lifestyle.

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Walter

What bearing do your personal views on processed foods have on the obvious freeriding by retailers which is nothing short of theft. It’s like your saying theft is ok because you don’t like the people who are being robbed (even though the thrives go onto sell the same goods which you object to)

I was just shopping in Boots for shampoo and was legitimately confused at the bargain price of Herbal Essences. Had to look a little closer to see the Boots logo. Now, this is despite me knowing full well that Boots sells ‘lookalikes’ and I’ve seen them before.

What did I buy? The Boots ones – half the price.

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william

It is worth noting that this activity is also effecting smaller businesses which have good products….we were requested to send samples to aldi 3 years ago ,being cautious we made a proviso they were returned………. only one was and you can guess what happenend 3 months later . I feel these copycat brands and products are a cynical approach to business and it is these large retail companies capitalising on our hard work.

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wavechange

We are accustomed to technology companies taking legal action against their competitors, and vice versa. To the layman, it seems that the main beneficiaries are the lawyers, payed for by the customers of course.

I assume that copycat products cannot be classed as counterfeit because product names and text on the packaging will be different, albeit subtly in some cases, but do companies take legal action against manufacturers of copycat products?

Hi wavechange,

There have been some cases of legal action being taken, yes. We’ve covered a few of them in our full article on copycat packaging, which is in the upcoming issue of Which?.

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wavechange

Thanks Matt. I look forward to reading the article.

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Walter

This isn’t about protecting consumers from buying g the wrong thing. It’s about protecting consumers from there being no future innovation. Brand manufacturers spend a fortune developing goodwill and many of their new developments which cost a great deal are unsuccessful. Retailers get to see sales data before even the brand and then copies of the winners. There is only one reason the retailer copies to the limit of trademark infringement and that is to freeride on the brands. People should remember that our economy and people’s jobs depend on intellectual property. On design and brand equity. Why should any manufacturer invest in a variety of new technologies if a retailer can copy and undercut of the winners with no investment. Consumers should show some loyalty and avoid generic only supermarkets like Aldi and Lidl

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wavechange

I support protection of intellectual property but we do seem to be going a bit overboard these days. For example, Cadburys/Kraft now has the exclusive right to use the colour purple for chocolate packaging. Pathetic, in my view.

No-one is forcing the large brands to spend a fortune on advertising, pushing up prices. It’s also the big brands that seem to be producing highly processed foods, and what the public deserves is less processed and more wholesome food.

Let’s have good products at an affordable price – and not worry too much about the profits of the multinational companies.

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Walter

I am a brand owner and also a semi-expert in trademark law. We will have disagree. Why us is pathetic that Cadburys has a trademark on the exact colour Purple? The purpose of a trademark is to identify the source or origin of a product. The Cadburys colour is like a red phone box or yellow new York taxi. Greedy retailers copy established brands who have invested millions and decades of work into packaging consumers trust, identify with and love. It is freeriding. As for advertising in can assure brands would like to spend as little as possible but must maintain or grow market share to survive. You are thinking as a consumer wanting your 30p discount without realising this is to commerce what printing money is to wealth.

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Walter

Please can we have a reasoned intellectual debate without going off onto irrelevant tangents. Whether or not you like processed foods it is irrelevant to the debate we are having.

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wavechange

Walter – I am opposed to deliberate deception, and I said this at the start of this discussion. If millions of pounds and decades of work have been invested to develop products we buy in supermarkets, I’m not impressed.

I do not have much time for supermarkets but one good thing they are doing is to convince the public that they do not need to buy expensive, heavily-advertised brands. :-)

My criticism of big companies producing persuading consumers to eat highly processed food may be irrelevant to the debate, but it’s about time that those who care about wholesome food said something about the problem.

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Em

It’s not pathetic for Cadburys to trademark a colour, other than they have no brand to protect. Remember, this the company that was fined £1 million for food and hygiene offences in 2006. It led to 3 people requiring hospital treatment for Salmonella contamination in Dairy Milk chocolate.

I avoid any chocolate product wrapped in Pantone 2685C so, paradoxically, they may have increased consumer choice.

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wavechange

I wonder if most people reading this will know the difference between Pantone and panettone. :-)

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Walter

We agree. A strong brand images and packaging can have the downside of people associating and remembering your brand for a negative thing. All the more reason for brands to have that protection to ensure they have the benefits from being able to invest in highest standards.

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gradivus

Walter,

You say “It’s about protecting consumers from there being no future innovation.”

Really? I would agree wholeheartedly if we were talking about, say, the technology industry. But cornflakes? Is the high price of, say, Kellogs cornflakes due to innovation? Have cornflakes changed in the last half century?

I’d put it down largely to recouping the cost of advertising, plus an element of greed.

At a slight tangent – I tend to make note of heavily advertised products and actively avoid them. They’ll inevitably be poor value for money because you’re paying for the product AND the advertising.

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Walter

“If millions of pounds and decades of work have been invested to develop products we buy in supermarkets, I’m not impressed.”

What does this mean? You think supermarkets are somehow low down in the pecking order of sales channels? Mass market (rather than boutique) is exactly where the millions are spent on marketing. In any event as per your wholesome food tangent, whether or not you are impressed with the performance of brands, they are not fair game for being ripped off.

I’m sorry but there are loads of people (mainly every daily mail reader) who go on about organic this or that. Sometimes it’s sensible often it’s snobbery and ignorance of what a chemical actually is and science in general. Anyway at least we’ve now established that all of your objections are irrelevant. All we are debating is the ethics of ripping people off. Own label brands are freeloaders and consumers of these brands are like people who pirate download music. Eventually all innovation will stop.

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wavechange

Sorry Walter. I was not trying to annoy you. I think those who are ‘ripping people off’ are the big brands with their high prices. Supermarket own brands are becoming very popular, so perhaps they are becoming big brands without the hype. I must try Aldi and Lidl, which you have mentioned. Up to now, I have bought only some hardware and the odd pint of milk from Lidl.

Let’s end this discussion unless you want to further discuss chemicals and science. That’s something I know a little about.

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Walter

I think no matter how many times I write you cannot seem my point which is one of logic not opinion… The debate is about the ethics of copying packaging. It is irrelevant which product is better. This is my last attempt at trying to explain this. Lets say you have a recipe for a cake. Handed down to you through 5 generations of your family. Over the decades your great great great grandmother’s recipe has become famous with a uniquely distinct cake tin design and sold in all the supermarkets. Ok…. Now I come along and copy your cake and also copy the cake tin design so much so that some people are even confused in the speed of shopping as to which is the real famous ol’ grandma’s cake. When they taste mine they actually prefer it. Mine has more sugar let’s say or some MSG. And yours doesn’t. Now you’re starting to get it right? My cake is cheaper because I don’t have to advertise as my retail partner, the supermarket, has agreed to put my product right next to your product on the shelf. I get to ride for free on your reputation and advertising. Consumers think my cake is the same as your cake, or comes from the same factory, but is cheaper. So they buy it….

Now tell me, what relevance does which cake taste better have anything to do with the business debate on copying packaging? Wouldn’t you in fact agree that I am a worse offender ethically since I have a product that I could brand and market and compete with you fairly on taste instead of being a parasite. You could and I believe would be crying foul on this very thread a out how everyone is copying your packaging unfairly. Then I reply that consumers prefer the taste of mine and it’s cheaper so your family is ripping off the public.

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wavechange

Walter – If manufacturers want to spend money on legal proceedings regarding copycat products that is fine, except that the consumer could end up paying the cost of the battle – as happens in the technology world. Similarity in packaging and placing the products alongside each other on the supermarket shelf is a help to the consumer. It helps encourage them to compare prices, ingredients, nutritional information, taste, etc. It helps customers see that products that have similar packaging are in fact not the same, which should help keep you happy. I don’t see any problem with any of the examples of copycat products illustrated in the current (May 2013) issue of Which?

Ethics is a hugely important subject in some areas, such as conducting medical trials, but the recipes of cakes and design of cake tins is hardly in the same league. I don’t think it’s ethical for companies to sell products such as ibuprofen at five times the price of a generic product.

Patenting is a little different. If a company spends a considerable amount of money in developing a novel product then anyone who makes and sells copycat products is likely to be stopped and have to reimburse the patent holder. The patent system allows manufacturer to recoup their research and development costs. The beauty of the system is that patents eventually expire, allowing other companies to produce generic products and the consumer benefits from cheaper prices.

One of the arguments for buying branded products is that the consumer knows what they are buying. To a certain extent that is true, but big brands do change and elsewhere on this site, people have debated changes in the recipe of Marmite and HP Sauce. Which? regularly turns up examples of cheaper products that are better. I hope that you would not want to discourage Which? from helping consumers in this way.

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Walter

Trademarks are different to patents and do not expire. They are equally valid legal instruments for brands to protect their investments. Again you use your personal bias towards products like medicines. Any trademark or patent needs and deserves the same protection regardless of your PERSONAL view on the product type.

Of course I have no problem with Which? telling us about cheaper and better products than the incumbent brand. This is the correct way that a new entrant to a category can marker themselves to consumers. I think that’s great. but what on earth has that got to do with copying packaging.

Maybe I should start a magazine called Watch? with an identical design and at half the price and copying all the reviews from Which? so they have no cost. Then the retailer put my magazine on the same shelf. People like you will then accuse Which? of ripping off consumers and

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wavechange

I wonder if Which? has protected use of the question mark in UK consumers’ magazines. You certainly would not get away with plagiarising reviews from Which?, though small quotations and a reference to the source would be permitted. We have extensive protection for IP and I remain convinced that we need any more legislation regarding trademarks.

One of the big differences between trademarks and patents is the need for significant novelty for a patent to be granted. I have a handful of patents myself and have some idea of how the system works.

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Walter

1. Yes Which? has protection for the? In that it is a distinctive element in their mark.
2. I was making an analogy with reference to copying the articles. Food and cosmetic manufacturers have to declare their ingredients and others can copy with impunity. People skilled in the art can either copy based on the ingredient list and their knowledge with trial and error or they can use HPLC machines to literally reverse engineer. It’s the same as copying articles. I am not that familiar with copyright law but often you see articles paraphrased in titles like The Week. Indulge my point.. Imagine if the test results from Which? Could be sneakily used by Watch? My point is to illustrate the absence of cost for the copycat. I want to know why in this scenario you don’t see Which? as ripping off consumers. My allegation is you are biased against ‘processed food’ brands and cannot apply the spirit of the law fairly as you would with a brand you like eg Which?
3. We also have lots of patents and yes they need an inventive step to be granted. Trademarks also need to be distinctive (ie. Novel) and meet many other criteria to get registration. Trademarks are very valuable IP instruments because they protect investments made AFTER a product has come to market.

I’m typing on my phone and cannot really put in the links to which law suits and their trademarks. Apologies for the typos.

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wavechange

I’m sure you are more familiar with the current food labelling regulations than me, but a list of ingredients is hardly a recipe and the amounts of minor ingredients are often not specified.

HPLC (high pressure liquid chromatography) is undoubtedly a powerful technique but can only be used to quantify small molecules. Yes, it has a use in reverse-engineering products but it is only one of the tools needed. I have no knowledge about what goes on in the food industry but it seems very likely that large companies are studying the composition of rival products, irrespective of whether these are produced by large or small companies.

Incidentally, I have no connection with the food industry. I’m a retired academic who has used HPLC and other analytical techniques in research. Most of the supermarket products I buy are branded. I prefer to avoid anything that is produced by Nestle because of the considerable criticism of that company over many years.

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Walter

I agree that the current law on trademarks would consider most of the Which examples as not infringing trademarks. I think there are one or two which if challenged might be found to be infringing. Many brands owners feel unable to sue because of huge cost and recriminations by losing supermarkets who may not stock your product anymore.

Why is cake different to medicine in terms of trademark protection? It seems you intellectually incapable or unwilling to separate your personal opinions on a variety of ethical issues (many of which I happen to agree with you on) with a logical debate on the damaging economic effects and morality of copying a brand’s IP. In my view trademark law is too weak in protecting brands, as consumers cannot be burdened and expected to not choose cheaper copycats

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wavechange

Walter – I would be very grateful if you avoid personal insults. :-(

Can you give us examples of copycat products that you consider to be unacceptable?

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Walter

If you want to debate with us on this site, would you try to avoid irrelevant factors.

If you goto Aldi you will see a thousand examples of copycat products.

It helps to make my point that I genuinely can’t name any copycats because all I know is they look just like Weetabix, Nescafe etc. I think that McVities digestive copy in the article is sailing incredibly close to the wind. Surely you agree that these biscuits REGARDLESS OF THEORY TASTE, are unfairly making use of McVities’s property??

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wavechange

If McVities are concerned about Aldi’s biscuits they can take legal action. I wonder if anyone believes that they are buying the McVities product. If it concerned me, as a customer, I would take the biscuits back.

It’s not just small companies that are involved in gaining inspiration from the packaging used by others. Looking through my kitchen cupboards I have found a jar of Nescafe Alta Rica coffee with front and back labels in various shades of purple. From memory, they have used purple on the label for years. I have also got a jar of Kenco Costa Rican coffee with purple labels, otherwise quite different in appearance. Both jars have octagonal caps with tapered sides, and I have no idea which company provided the inspiration there.

I have noticed biscuits that look and taste similar to Fox’s biscuits appearing under different names. Marks & Spencer comes to mind. And, as someone pointed out earlier, the same cornflakes can be sold under different names.

On this website there are many thousands of complaints about problems such as nuisance phone calls, price rises on mobile phone contracts, credit card surcharges, and the behaviour of banks and energy companies. I have not seen much concern about people buying copycat products by mistake. We are more concerned about manufacturers decreasing packaging size to conceal price rises, and that probably applies both to well known brands and copycat products. You are obviously very concerned about copycat products, Walter, but please don’t assume that we are all losing sleep about this.

Come and join the debate on other topics. It would be great to find things we can agree on.

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Walter

Legal action is difficult because it’s difficult to prove trademark infringement. My argument is trademark law needs strengthening to protect innovators from copycats. Our disagreement started because you seemed to defend copycats based on the fact that some copycats taste better, and that incumbent brands are ripping off the public by charging more – the natural result of the costs of building the very market that the copycats are selling into.

I have no issue with the same product sold under different names. Why should it be any of our business. If you feel ripped off then boycott the brand. What we are talking about is copying packaging and stealing IP

You seem to talk on behalf of people. You say “we” and “us” a lot which is annoying. It maybe that more people in this forum are talking about nuisance calls (I hate this trust me) but I dint follow your logic that therefore it is not worth talking about. I think that copycats and the consumer trance that accepts it is a huge factor in the bringing down of many western economies that rely on the strength of their branding to be successful.

I think more as a businessman and not as a consumer. I’m interested in your jobs and not in you saving 12p on a box of corn flakes

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wavechange

Sorry Walter. I am enjoying one of the longest discussions that I have had in the last couple of years and I am not trying to annoy you. Depending on the context, ‘we’ and ‘us’ could relate to consumers or discussions I’ve been involved in on Which? Conversation. For the consumer and those who use this website, trademark infringement is not a major issue.

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Walter

And I apologise for perhaps being impolite at times. I’m passionate about this and it’s important in any debate to stick to the point. It may be that you have been on this forum for a while but I would prefer it if you could beat me with reason and fact rather than using emotional strawman arguments like being anti processed foods and further by using we and us to giving the impression you speak for the entire community. This is a poor debating style. I gave you the rather crude hypothetical example of Which? being copied and asked you why you don’t buy Watch? and you don’t find Which?in this case to be ripping off the consumer. Presuming you get my point will you concede that regardless of what you think of food conglomerates they are not necessarily ripping consumers off by being more expensive than the brands which copy them?

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wavechange

Apology accepted. I see Which? Conversation as a venue for a light hearted discussion.

I have just been to Lidl and bought packets of the McVities and Tower Gate chocolate digestive biscuits featured in the current Which? Magazine. They were on the same shelf, making it easy to see the difference, but I cannot imagine mistaking one for the other. The prices were £1.75 and £0.59 for 400 g packets.

Ignoring the taste and texture, which seem much the same to me, are you suggesting that people should pay three times as much for a packet of biscuits manufactured by a better known name? If that’s not a rip-off, I don’t know what is.

I can think of many examples of products where I am happy to pay more for what I regard as better quality, but I probably won’t buy any more expensive chocolate digestive biscuits.

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Walter

I can assure you with personal experience that it is very easy to use declared ingredient lists (all have to be declared in cosmetics regardless of percentage) to replicate a product. You are right HPLC is good for small percentages and that is how fragrances can be replicated. While ingredients are not recipes, people like our chemists can copy any product in 48 hours just with experience and trial and error. We in fact do this not to market them but to use as benchmarks.

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wavechange

I said small molecules, not small percentages. I thought we were discussing foods, not cosmetics. I can see that it would be easy to investigate the ingredients of cosmetics compared with cooked foods, for example.

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Walter

Hi. I am not sure how I am failing to explain my position even though I have tried half a dozen times.

I am combing the two threads into this reply.

I have never suggested that people should pay more for the same or similar thing. I also have not really said that people will be confused into which is which if they are looking carefully. What I have said REPEATEDLY is that the only reason you are trying the copycat brand is because of the original brand. The original brand has created the market and the formula. If the packaging was not the same design then you wouldn’t have bought them. Simple as that. The investment the original brand makes in making the category is such that they have higher input cost. Bargain hunting consumers who are happy to buy copycat brands which free ride on the investments of others by pushing the trademark law to the limits is all I am objecting to. I simply cannot explain it any more simply. I am beginning to think you are deliberately misunderstanding and I don’t want to engage in this discussion any further.

As for the HPLC part of the conversation, I don’t get your need to make a distinction with amounts and percentages given the context of what we are talking about. What exactly is your point? 1 gram of 100g or 1% is the same thing. Why did you think we were talking about foods and not cosmetics and why would it make any difference. i am finding it impossible to debate with you as i cant get any sort of logical common ground.

fragrance , aromas and flavourings are added to foods to make them taste of what the manufacturer wante them to taste of. All the same chmicals are used in foods and cosmetics. Whilst it may seem incongruent to you, foods and cosmetics are pretty much identical in terms of our debate. Cosmetics are cooked just as with food ie. a recipe and method of manufacture is more than the ingredients listed on the pack – jeez I am making the point for you and you argue with me.

What is it about your mindset that you think as a consumer that you are being ripped off? It you who is ripping off the brand. Why can’t you see that?

You know how kids these days think the world owes them a living.they expect a job rather than ‘getting on their bike’ -one hears a lot of retired people complain about this attitude of younger people. Well I see you attitude as exactly the same as a consumer. You want something for nothing. You expect others to work hard and make an investment but you want to get alll the benefits without contributing. Maybe you should think about that next time you buy copycats,

I think Which? teaches us to be good consumers. Being a good consumer includes not buying counterfeits or perhaps not buying produce made by child labour. I am proposing that the degree of copying by these Aldi brands is so incredibly close to the real brand that its morally a counterfeit.

I for one do not download pirate music or buy child labour products. I also don’t buy knock off Aldi brands. However, if which reported on a new manufacturer which produced a better product at half the price, I would have no loyalty to the brand. This is not about fair competition. This is about brand theft.

I am tired of being unable to convey my point to you. After I thought I was getting somewhere you went to a shop bought two biscuits which you identify as one being the copy of the other and saying that because the brand is three times the price that ‘we’ are being ripped off.

One last point… While often a copycat brand is made by a similar manufacturer, that isn’t always the case. A brand is also a sign that you can trust their cleanliness and good manufacturing practice. A copycat could be made anywhere. Horsemeat anyone? (It was nearly always the own label brands that contained horse meat except Findus which lets face it is not a well respected brand)

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wavechange

Walter

I assure you that I am as confused by your comments as you are by mine. Let’s leave the HPLC because you do not understand my point and I don’t know how much you know about the technique or chemistry. It is also not very relevant to what we are supposed to be discussing. As it happens, I don’t pirate music or films. I try to avoid buying from companies that have a record of unethical behaviour (recall my earlier mention of Nestle in this context). One of the reasons I buy few items online is to try to avoid counterfeit products. We may have more in common than you imagine.

I had intended to make the same point about food safety and traceability (and to mention the horse meat scandal and Findus) but decided that you might be upset about me going off-topic. Malcolm R raised this point in another Conversation. I don’t buy cheap or highly processed meat, sausages, burgers, etc. The big manufacturers sometimes make mistakes. Em mentioned the problem that Cadbury had with Salmonella. I remember the case well, and various other problems that have been somewhat embarrassing for the big companies.

Meanwhile, back with the chocolate digestive biscuits. They have been made for decades, so whoever invented them is not really relevant. I assume that the problem is the fact that the Tower Gate packaging is similar to that used by McVities and not that the latter company should be the only one allowed to make and sell that kind of biscuits?

I do not know the legal definition of counterfeit, but I don’t see my cheap biscuits as counterfeit because despite the similarities the packaging is distinctively different. Some years ago I bought what I thought was a genuine Apple laptop power supply online but it was quite different from the picture of the genuine Apple product shown on eBay. No-one could doubt that it was counterfeit and I did report the problem.

Have I committed a heinous crime in buying one packet of cheap chocolate biscuits? Is it inexcusable for Which? to have informed me that these biscuits exist? I can afford to pay three times as much for a packet of biscuits but why should I be expected to pay such a huge premium? It’s not that chocolate digestive biscuits are a revolutionary new product and the result of years painstaking research and development. Spare a thought for an unemployed single parent who has to count the pennies.

What should Aldi and Lidl be doing to meet with your approval? Would you be happy for them to sell chocolate digestive biscuits in green wrapping with pink polka dots?

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Walter

1. Yes let’s leave HPLC although I am quite familiar with the molecular size point you think I have missed – hence my remark about fragrance.
2. Horse meat is off topic but as you stated, there is less chance of a brand being guilty of this than an own label product where they (a retailer) are just buying in something.
3. Meanwhile back with the chocolate digestives :-)

The chocolate digestive biscuit is not patented and therefore anyone can make one. We both agree there is no issue with any company making one and selling it

I presume the term ‘digestive’ is or has become generic and therefore can be used to described that type of biscuit. Again I have no issue with to usage.

You assume wrong. Tower Gate can make digestive biscuits to their hearts content and let’s hope they revolutionise the biscuit world with the most incredible digestive ever

Lets leave the counterfeit apple product as a tangent.

You have not committed a crime by buying the biscuits and Which? have not done anything wrong by informing you of their existence.

I have gone through your post line by line and given my response…. We are now getting to the nub of it..

I contend that because of lacklustre trademark laws and a lack of appetite (excuse the pun) by frightened brand owners to sue their supermarket customers, there exists competitor products which look so similar in their marketing to the original brand that Which? Is reporting that consumers have gone home thinking they have bought a different product.

Even though this is rare, and most people are able to discern the difference (ie these are not counterfeit), there is still a big problem in that the copycat brand enjoys a status that it is being bought by you as a probable alternative. Without the highly similar packaging you would not have selected the biscuits and therefore not have had the chance to know it was as good (and therefore you were being ripped off). Indeed further, if the supermarket had not placed the copycat product right next to the branded product you again would not have had the confidence or ability to buy nor find respectively the product in the first place.

Now you are probably thinking … ‘Yeah that may be true but the biscuits taste the same so while it may have been deceitful for the copycat and retailer to put them in my hand, the reality is still that I have been overcharged by the real brand for years’

… Ad here is my point….. Please please please read this carefully and try to understand,

The reason the brand costs more is because they have had to create the demand in the first place. This is by far the most expensive part of the supply chain. For every winner, the food company has had to waste marketing money and pour away research funds on failed launches of failed products. They also they have had to advertise their digestive over the years and make it the household name it is. Also the brand company has such a huge reliance on the revenue from their brands such that their manufacture costs are most probably higher since on average, their quality will need to be higher. Even if that is very similar the cost of higher quality is not necessarily proportional.

Now by contrast, a supermarket can simply buy brands, wait for sales data to show winners and then stock copycat products and place them next to the brands. If the brands complain, they will delist them.

It is not fair for you to decide what is a revolutionary product or not. And what possible logical relevance does the revolutionariness of a product have to do with whether it should benefit from the protection of a sophisticated market with proper trademark laws. As for your irrelevant plea for the single parent, maybe you should spare a thought for the fact they were recently employed by the brand owner who has had to lay off staff because of unfair imports from a Chinese biscuit factory supported by retailers and consumers. I said this many posts ago, for me this is about jobs. Consumers need to think of others rather than just themselves and shop ethically rather than try and save every last penny. Someone, somewhere is paying for that saving. And usually it is a low paid worker in the UK losing their job.

I am not sure about the packaging design you suggest but certainly they could take a leaf out of Sainsburys book who make beautiful own-label packaging which do not rip off brands and also look classy so as to make the products appealing to the consumer. Marks and Spencer in the main are quite good at making their own packaging look appealing without ripping off the brands.

In the USA, own label brands have to write on the pack “This tomato dressing is not made by Heinz or any of its suppliers….. Etc” on every own label pack.

So there you have it. I cannot add anything else. I hope you can appreciate the rationale of my views even if you don’t agree with them.

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wavechange

So, Walter, you are saying that it’s OK for the public to pay three times as much for the big brand version of chocolate biscuits. You invited me to disagree with your views and I certainly disagree with that one.

I do not have a lot of time for supermarkets but thanks to your help I now begin to understand that they are doing us a great service in providing affordable alternatives to costly big brands.

Let’s end our discussion now. You can go and take legal action against these companies that produce copycat products which will not fool the majority of people.

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gradivus

Walter,

Quote: “The reason the brand costs more is because they have had to create the demand in the first place…They also they have had to advertise their digestive over the years and make it the household name it is.”

The costs of creating demand for chocolate biscuits (and cornflakes) MUST surely have been recovered half a century ago. Why are McVities’ biscuits still three times the price?

Quote: “maybe you should spare a thought for the fact they were recently employed by the brand owner who has had to lay off staff because of unfair imports from a Chinese biscuit factory”

Firstly, many famous UK companies now source their products from elsewhere in the world. I don’t know whether McVities’ or Aldi’s biscuits are made in China, but both companies have the same choice. That’s globalisation for you.

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Walter

Gradivus,

First your thumbing up of your own comments made minutes ago and going through the thread thumbing down all my comments multiple times is really pathetic. Wavechange and I have had a robust but civilised discussion. Even if we’ve got irritated with each other, neither of us resorted to unbecoming tactics such that I allege you are doing. It’s obvious that weeks of no votes are suddenly appearing within hours of you joining in.

Also I would think you should read properly and not pull selective quotes out of context.

There are a multiple of reasons why brands must charge more or as I have explained ad nauseum, how it is that copycats can charge less. They don’t have any marketing budget and research costs. But yes, I agree legacy costs for old products will have been paid off. You could not have read what I wrote about brands needing to develop many new product to get winners and that cost has to be paid for somehow.

Of course both brands and generics can get their products made anywhere (I am not saying otherwise), the brands element of the business is the much more valuable part (than the manufacturing part) for the economy. This is something I have tried to explain numerous times in this thread. If you read all the thread and not just nitpick with me because I said you were wrong on a point of fact which which is correct, you might in fact find we agree on a whole lot.

Consider this a second warning – do not make comments personal. Stick to the arguments and try not to be rude. Thanks, Patrick

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gradivus

Walter,

Wavechange and I have debated before in these conversations; usually we broadly agree, and can find some common ground where we don’t. And the debate is always civilised and good fun.

I shall ignore your personal attack that I am in some way fiddling my thumbs-ups. Though I should point out that I have joined this conversation a month late as a result of an email newsletter from Which? It’s very likely (inevitable?) that many of the thousands receiving that newsletter are now reading this conversation.

You can be sure that I will have read properly anything I respond to, although I do confess to being human and making mistakes from time to time. Two “pleases” in your 21/4/13 11:47 post would have been more than sufficient.

The reason why I “pull selective quotes” is because these are the ones I wish to debate. The two I chose from your post were, I felt, very weak to the point of being irrelevant. The other points you make have more validity and add to the debate.

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wavechange

Gradivus – I have certainly enjoyed earlier discussions. It would be very boring if everyone stayed strictly on-topic and posted messages like ‘I agree’.

I certainly think it is valid to select statements from postings for further discussion, providing this is not done to discredit any contributor. I was horrified when someone selected a collection of sentences and phrases from my numerous postings on a topic as evidence that I was a spy from the pesticide industry.

Anyway, that’s off-topic. I am having interesting discussion with Walter and learning a lot. We should respect each other and hope that Patrick’s next contribution is about copycat products. :-)

I do not watch commercial TV and pay little attention to any form of advertising because of the extent of misrepresentation and deceit. Though I am very well aware of retailer brands, I had not really given much thought to copycat products until this Conversation and the subject was covered in Which? magazine.

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Walter

Gradivus, I felt that you did not read the thread and pulled quotes out of context.

I found it hard to believe that of all the posts after weeks of no votes, all of a sudden the posts you made suddenly got thumbs up. And then the ones involved with you of mine were thumbed down. I accept you are denying this.

I do not know who it is that Patrick is warning here but good manners relates to a lot of conduct. And also to a standard of logic and debate.

Walter and Gradvius – time to close this exchange. Talk about copycat packaging and the arguments at hand or not at all. Any further comments that talk about votes or make personal accusations will be removed.

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Walter

Look at the vote at the top. 47% of which? Readers think piggybacking is wrong. The other 53% said the copycats were ok as they weren’t confused. Obviously this is a different question. I think a majority of people if asked a fair question would say piggybacking is wrong. And this is asking highly sophisticated consumers as a demographic. If you added in union workers and managers and business owners you would find yourself in a minority. Don’t choke on your cheap knock off biscuits.

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wavechange

I was one of the ones who voted that piggybacking is wrong. In my view, it is something that manufacturers should sort out for themselves, and if they cannot manage to achieve that, they have recourse to legal action.

Thank you for your kind postscript.

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Walter

What you have been reading is one manufacturer using one thread and democratic means to ‘try and sort it out themselves’ by conversing with shoppers on a consumer advocate website.

As I have explained there is no legal action to resort to.

So you vote one way and act another. I admire your strength of character to declare that you are a hypocrit on this subject.

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wavechange

Walter

I would be interested to know your view about large manufacturers copying ideas for packaging from each other. I mentioned an example of instant coffees produced by Nescafe and Kenco, both sold at similar prices. I don’t think for a minute that anyone is likely to mistake one product for another, but it seems likely that the similarities are intended to attract customers from one brand to another.

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Walter

I saw an Aldi product the other day. A copy of Special K. I think it was called Berry K and the B was just like the K of Special K. This is a rip off intended to confuse consumers and dilute the brand owners rightful goodwill in that sale. The consumer was buying the Berry K because they felt it was in some subconscious way to be like or similar or the same as Special K. It is theft.

What you describe with Kenco and Nescafé is something else. Firstly, Kenco probably did start off copying Nescafé but like the generics they stayed far enough away. Young brands are often either wacky originals or themselves aping the brand leader. And i think the same of this practice. However there is one difference in that as a brand then develops a niche, it will of it own volition, start to distinguish itself from the brand leader ie. it will gradually move away into it’s own style. The generic brand only further copies the more popular it gets.

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wavechange

Thanks for the comments about the coffee, Walter. I suspect that larger brands are looking at each other’s products and copying features from each other. I had only thought about this in the context of cars, where no-one could fail to spot the similarities, and the Microsoft/Apple operating systems.

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Walter

You are mixing packaging with product. This is not what we are discussing.

Hello Walter and Wavechange, you’re just about on the right side of our Commenting Guidelines, but I just wanted to show my face to remind you to be polite to one another even if you disagree. Thanks. More info here: http://conversation.which.co.uk/commenting-guidelines

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Barbara Townsend

I bought what I though was a Cadbury Chocolate Cake for the grandkiddies, only to find it was Tesco’s own. The word Chocolate on the Tesco box was in the same design as the word Cadbury and the box was the Cadbury colours too. I felt a bit duped. Next time I will take my time when selecting.

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Walter

Well wavechange thinks you should take it back.
A poster above thinks your stupid for not noticing. The legal test for passing off (as many of you will have seen on a recent QI is “a fool in a hurry”.

I on the other hand think your enjoyment of a clearly distinct brand you trust and love is a fundamental consumer right. I want to protect your right to choose your brands without fears of being misled or fear of being ripped off.

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wavechange

I certainly think Barbara is entitled to a refund and Tesco should pass her concern to head office. It’s not fair that anyone should be misled.

Having said that, Tesco chocolate cake might be quite nice and is likely to be cheaper than the Cadbury’s cake. I do not buy chocolate cake, so I cannot comment. Tests run by Which? have frequently found that the larger brands are not the best when compared in scientifically valid trials.

We had a recent discussion about chocolate digestive biscuits, where the big brand cost THREE TIMES the price of the copy. I’m not a connoisseur of these biscuits but they tasted much the same to me. In my humble opinion, I was being ‘ripped off’ by the big brand. Everyone I have discussed this with agrees.

Providing that the customer can have a refund if they feel they have been deceived, I am not too worried about copycat products.

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Walter

You have a lot more time and patience than most.

People will not nor should have to waste their time trapsing back to shops to argue with pimply teenager that they thought they were buying something else. Maybe once on principle you might do it. I doubt people would do this over the long term.

Did you know that 8% is the industry average level of non redemption of gift vouchers. The model is you print a glitzy voucher for £100 but only £92 is redeemed. That’s the reality of shopper behaviour (and incidentally the mechanism for how the voucher industry exists and how it gets paid for)

Everyone would agree that something that tastes the same but costs three times more is a rip off…. Unless you have context and reason. That is what I am trying to provide. If you took a repoll but reminded the voters that a quarter of them would lose their jobs and future innovation of products would cease, you’d find a different outcome.

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wavechange

I am as passionate about consumer issues are you are about your brands, Walter. My struggles with Tesco have been reported on this site on numerous occasions, and the only reason I use them is that it’s the only supermarket nearby. I’ve been at their customer service desk twice in the last fortnight about their mistakes, spoken to a sales assistant about incorrect unit pricing and had a useful response to an email about cutting down pack sizes.

Prompted by our discussion, I have been experimenting with cheaper products, though I have not kept a record of what I have saved. The only time I have been disappointed was with B&Q gloss paint, which failed to dry in a reasonable time. I’ve had to take the paint back, report the problem, and pay over twice as much for Dulux paint.

I have some old Kingfisher vouchers, amounting to £185, that I have not been able to redeem, despite considerable effort. No doubt this counts towards the statistics relating to non-redemption of vouchers.

Just how much innovation do we need? Take the case of chocolate digestive biscuits, which we have discussed earlier. I’m not convinced that any change is needed. I really don’t want to pay more for a product because someone has titivated the appearance of the packaging.

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Walter

I really do respect what you are saying and as a brand owner, I want consumers to really test us. All I have ever said in all our debate is the same consistent position… That copycat brands can produce great stuff and undercut and make the same product and do all the things they want to offer the consumer a better deal and to push the brand to do better. I am 100% behind competition. I am not against Which? Saying a supermarket washing up liquid is better than Fairy for example.. However I saying that the copycat can only produce equivalent quality because it has not input cost for r&d and marketing because it just copies a brand and copies the labelling style and sticks it next to the brand ie. where the brand has paid for the consumer to en standing. All that cost has to be paid for. by purchasing generics, you are effectively forcing one company to bear all that cost without any loyalty benefit. This is against any natural law of fairness.

How do you feel about buying CDs and Downloads from Jersey which is except for paying VAT on items under £18 (my numbers are a few years out of date but you get the picture)… Do you think as a consumer you should buy from a Jersey company knowing effectively that your supplier pays no tax but the UK mainland supplier has to pay 20% tax.

You probably think it’s for the government to close that loophole and unfair to place that burden on consumers. I agree in part. I think consumer need to be ethical in their purchases – take Primark and that factory in Bangladesh. Tax avoiding businesses need to be avoided because they are a) forcing you to pay more tax but also because they are unfairly competing against UK registered businesses that pay taxes. I see no difference in the situation with blatant copycatting of brand packaging. Only the brand is paying the costs (tax if you will) and then you are comparing both on price. It’s not fair.

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william

It’s not just the food industry that attempt to dope the unwary. It happens in the movie world too. Just look up the term Mockbuster.

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wavechange

I think it is far more important to tackle counterfeit products that are sold as well-known brands but are in fact fakes. Anyone who is deceived by copycat packaging of supermarket products should take them back. If enough people do this, then the information will be fed back to head office.

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Walter

I agree counterfeit is more important an issue but it’s not what we are debating.

I think you are being naive if you think a consumer taking back a product saying they were confused into think it was a brand will do anything but ensure the product designer gets a bonus. Because that will already be a product that vastly outsells its natural generic position against the heritage brand. Own label products are huge cash margin earners for retailers.

I’m sorry but it’s so evident that you know nothing abut how retailers and retailing really works in this economy. It’s absolutely cut-throat. Brands are the consumers only real friend and yet the consumer accuses them of ripping them off. If only they knew the truth of it.

If you want to protect consumer rights, high quality and high standards of morals towards staff, then stop trying to save very penny. This race to the bottom is such a shame to see advocated by a clearly intelligent consumer.

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wavechange

All you are doing is convincing me to switch from branded products, Walter. Please don’t underestimate me. I am the customer and no-one tells me how to spend my money.

I never had much time for those companies that spend a lot of money on advertising, which customers have to pay for. “Brands are the consumers only real friend….”. I’m not so sure about that.

In the example we were discussing, I believe that Tesco is a brand – a very large and successful brand.

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Walter

I’m not sure by what you mean “the example we are discussing”. Tesco is a brand but a retailer brand.

I don’t see why “you have never had much time for those companies that spend a lot on advertising”. Why not? What are they to do. You wouldn’t have the copycat product to save on, without the brand first. You are just confirming you lack of understanding for retailing. How do you think brands get on the shelf in the first place. Do you not realise that to get listed they have to commit to advertising. And if successful they have to continue spending to fend off a parasitic copycat attack by the supermarket.

Wavechange, how do you propose in your system of no advertising (assuming they even got a listing) that a brand can exist? How could it possibly be viable against a copycat with its copied packaging, copied formula, better shelf position, better price and better instore merchandising? How? And if you conclude ‘well it cant’ then you are also saying that the copycat can’t exist. Since you can’t copy something that doesn’t exist before it.

Unless you everything that needs inventing has already been invented and so we don’t need any more innovation or brands. We just need all the stuff we have today at 30p off.

10 million unemployed would be a conservative estimate of the fallout of your policy.

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wavechange

I appreciate that Tesco is a retailer brand. It competes with other retailer brands. I know people who shop in several supermarkets and mainly buy these brands in preference to the market leaders. I don’t know whether retailer brands are copying each other’s packaging, but I guess this is happening or will be coming soon.

You have offered me a great deal of advice, Walter, so here is mine. If you feel that the makers of copycat packaging are the ones that are making large profits at the expense of brands, this could be the way forward. If you cannot beat them, join them. It’s a tough old world out there.

We are in a recession, Which? has recently told us that people are cutting back on spending, using their savings and even going into debt to buy food: http://conversation.which.co.uk/consumer-rights/uk-households-using-savings-to-pay-for-food/ Tell those who are struggling and defaulting on bills that they should pay higher prices to support brands and I don’t think you will get much sympathy.

I don’t understand why copycat products causes unemployment but since that does not concern packaging, it’s probably not appropriate to discuss here.

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Walter

As in a previous reply, I don’t blame consumers entirely. I feel that the legislation on brand protection is behind the explosion of copycat industry. There is no way to ‘if you can’t beat them join them’. Brands comprise the manufacture element and the marketing element. The manufacture part of the business could contract manufacture for supermarkets, ie make copycat brands for them (something you lambasted very much earlier) but the brand element of the business cannot “join them”. Anyway, surely you see that if copycats were all that was on offer, since brands no longer existed, only factories which produced generics for supermarkets, then you would have no innovation at all.

Just to illustrate the value of brands, it is famously said that if you took all the assets of The Coca Cola company.. The factories the bottling plants, the stock, the vending machines, the millions of distributors and resellers and all other trading income and effectively every single part of that massive global corporation, it would be worth less than a single piece of paper bearing the words “Registered Trademark – Coca Cola”. Brands will never ever disappear. In fact brands are on the rise and sector more and more niche. Brands are the assurance of quality and consumers love their brands. Brands just like Which?

How copycatting causes unemployment in a multitude of ways. It’s impossible to list here. But just think of the advertising that you yourself brought ups. All those companies involved in producing an advert. they would close. Would magazines exist without brands advertising. What about the Internet advertising world. And all the marketing professionals. And packaging companies would disintegrate as one major Chinese factory supplied identikit generic boxes. I could list a hundred different consequences of a brand free world. I think Russia tried this from about 1917 and it didn’t work out to well for them.

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wavechange

I’m beginning to realise how far our views differ, Walter. My opinion of Coca-Cola is entirely negative, thanks to all the criticism that the company receives. Wikipedia provides a useful summary. With sophisticated products there is a case for having global brands but I would far prefer to buy products made and sold by UK companies wherever possible. Think about the damage that Coca-Cola does to health and the environment. I have not looked at their recent anti-obesity campaign yet, but I would not be surprised if this further harms their reputation.

I’m sure that we can keep people in employment without exploitation of the public.

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Walter

I am certainly no fan of coca cola. Their misuse of water is my major concern in countries like India. I have read several tags over the yrs. as for obesity and sugar, I’d need to read more before making a judgement.

What I fail to appreciate with you, and this is not the first time, is you cannot debate on topic. What you or I feel about the company Coca Cola is irrelevant to the trademark and a brand value FACTUAL EXAMPLE I was giving. It is a fact that the brand name Coca Cola is worth more than all the other assets and trading income put together. Whether they sponsor mass murder or spread acid rain on organic baby food farms, is irrelevant.

Do you see that?

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Walter

On your last comment about exploring others. I have before given you my counter argument. And that is the unemployment lost will be in this country where people are protected. It’s the copycat brands who sell on price who use exploitative labour in Asia and cause loss of jobs in the UK.

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wavechange

Walter – I believe it is very valuable to explore related issues in a Conversation. Have a look at the site and you will see that many regular contributors are doing this.

When selecting goods, I don’t care much about what the packaging looks like. I am prepared to pay a bit more for local produce than imported goods. Packaging can have various protective roles, but I tend to reject over-packaged products on environmental grounds.

Why bother with large US brands when we are perfectly capable of producing soft drinks in the UK, employing our own people and boosting our economy. Although I just pop out to the supermarket, I have friends who have a genuine interest in buying local food and visit delicatessens. From what I have seen, the packaging is either fairly plain or distinctively different, presumably to help the products to stand out from brands.

I would not wash my feet in mass produced lagers and keg beers, but I seek out real ales produced by smaller breweries. It is not uncommon for these breweries to sell quite similar products and some breweries even admit to emulating well respected beers, but I cannot think of a single example of copycat labelling. Perhaps that would be a good example to follow. Our small breweries are keeping many in jobs, even if there is no great need for expensive advertising and packaging. Price can vary, but typically these specialist beers cost about the same as mass produced brands supported by TV advertising and fancy artwork. Is that not wonderful, compared with the big brands? It’s certainly my idea of innovation.

Is there evidence to support your observation that copycat goods are produced using exploitative labour in Asia, or other unethical practices? I tend to associate this more with the bigger companies.

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Walter

It’s pointless debating with you because you don’t follow established rules. It is not about whether you go off topic to add colour to your point. It is about you rejecting a factual argument because of a preference. You cannot see the logic. Whether or not you like coca cola does not diminish the point or validity of the example, I was making about financial brand value.

If I said Hitler has a moustache. Would that be a false statement simply because both we both detest that scum of a person. No it doesn’t. I expect a better standard of debate from you given your prior comments

I agree with many of your views in your last comment. But they do nothing to advance the debate we were having about copycat packaging.

It is with some irony that after effectively stating that you can say what you want off topic, that you then ask me to back up statements with facts. Nevertheless I am more than qualified to do so in the cosmetics field. A the cheap generic stuff comes from China or eastern Europe like Romania.

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Walter

I should have mention is my earlier reply that I could agree more with you on this statement “Why bother with large US brands when we are perfectly capable of producing soft drinks in the UK, employing our own people and boosting our economy”. If you imagine that we are a UK made brand, in UK shops and are undercut with substandard Asian imported copycat products. Then you would presumably want to protect my business which employs 57 people in Britain. We also export to 28 countries and are the brand leader in that niche everywhere we trade. We are paying our full taxes in the UK despite pleas from our accountants to reregister the business in Luxembourg.

Ps. Please could you reply to my earlier question to you on Jersey and how you feel about consumers buying from there?

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wavechange

I am very much in support of goods being manufactured in the UK, though the value of this selling point has been debased by use of imported ingredients and components.

It is vital that customers are aware of differences in quality. If Which? tests products then subscribers have access to objective information. Which? now allows their recommendations to be used in promotion of products, making basic information available to the general public. Unfortunately, the range of products tested is fairly small. I am not sure if Which? or other independent assessors test cosmetics, so how are we to know which product to buy? I certainly would not rely on advertising, because of the extent of misrepresentation and deceit.

On environmental grounds, companies should be manufacturing in other countries rather than exporting to them, though with cosmetics, the weight of goods to be transported will be very much smaller than many common exports and imports.

Even if manufacture of copycat products is banned, as you wish, a lot of people are happy to buy retailer brands or products they have never heard of. It concerns me that shops are closing and many are happy to buy online without knowing much about the product they are buying or who they are buying from. It particularly concerns me that the Amazon marketplace is being used to sell dodgy products, exploiting the fact that Amazon is well respected, except perhaps when it comes to paying taxes.

I am much happier with having small companies such as your own, compared with with the likes of Coca-Cola, McDonalds, Nestle and similar large companies that have attracted much criticism and even the attention of pressure groups. I can understand your concerns regarding copycat packaging, but I am not aware that this is a big consumer issue at present. If you try to push this with consumers you could find it counterproductive since price is the most important factor for many everyday purchases.

The reason I did not respond to your comment about purchasing from Jersey is that I don’t know anything about this, and certainly have not done this myself. The recent publicity about taxation of Amazon/Google/Starbucks may help the government look into how companies operate.

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Walter

Hi Wavechange, Well there are two sides to that environmental position. The pressure groups stopping of fresh fruit flights from Africa is overturning the cause célèbre of the previous five years, namely the free and fair trade with Africa on produce like fruit which they can compete on if EU tariffs are reduced. I don’t want to steer us off course, but there are consequences to the local produce only debate. Furthermore, from the issue at hand, our business can only survive because we export. It is our brand name that brings wealth and the lions share of the revenue back to the UK from consumers all over the world that buy our products. This is the same when you buy an iPhone. The bulk of the money does not stay in the UK economy but returns to the US corporation. With UK retailers not supporting brands, they have to seek smaller market shares but in a broader number of markets to maintain viability.

For the record – I do not see, to stop copycats and have never once made that statement. In fact I have stated the opposite … That they should be encouraged to innovate and push brands to breaking point by offering the consumer value. What I said is they can copy the products but not the packaging. This is my issue. I have tried to explain why this matters so much to us all. If generic products had generic boxes no one should buy them until they marketed themselves. Then the cost would rise and so would price. All of a sudden you would buy the brand because why trade down for a measly saving. It is solely through the theft of the brands reputation that the copycat can exist.

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Walter

Would you mind taking what I said about Jersey at face value and giving an answer. It doesn’t matter if you know much about it. I am saying it is true but you can answer as a hypothetical.

This is vital to me understanding your view on where the consumer has a responsibility. Should you save money buying a CD from Play.com which trades out of the Channel Islands and therefore can avoid paying VAT to the exchequer and undercut a UK mainland or should you buy the same CD from from a company that pays tax?

I need to know what you think because it cuts to the chase on the reality of actions over words. And it shows the huge problem that brands have to overcome when they we making all the contribution to the product category’s marketing and not the copycat.

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wavechange

Walter

I don’t want to say anything about Jersey. Perhaps if there is a Which? Conversation about the subject and I learn a little about the opposing arguments, I might give my view. I am not aware of having bought anything from the Channel Islands and I know precious little about international trade. I do take your point that environmental issues are very complex.

I am sorry if I have misrepresented your view on copycats. It was certainly not deliberate.

You have mentioned innovation on several occasions. As you have gathered, I am a bit of a novice, and I confess that although I can see opportunities for innovation in products, I cannot see much opportunity for innovation in packaging. Let’s take the chocolate biscuits as an example. Are you simply asking for other companies to use different colours for packaging and avoid use of similar fonts. I don’t see a problem there, providing that large brands are not allowed to copy from small companies. I may be off-track here because simply changing the colour and design of a biscuit packet does not seem much like innovation to me.

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Walter

There are no opposing arguments as such. It’s a quirk of the Jersey status. Point I’m asking you on is one of ethics. If you can legally buy something cheaper because you know the supplier doesn’t have to pay VAT whereas your local shop on the mainland cannot compete and would go out of business, would you buy the product cheap and save, or buy local and pay more because you realise the tax must be paid? You don’t need to know about Jersey, treat it as a hypothetical.

It’s relevant because I am drawing a parallel between copycats who pay no marketing costs( tax) and brands (the mainland suppliers) who have to pay all the marketing costs (tax). I think you are the sort to believe consumers have a responsibility to look beyond price only and shop ethically which means knowing your supplier is paying tax. Am I right?

No problem on the misunderstanding. Yes you now are following my position. It’s the packaging. They can do what they want but make up their own packaging.

The packaging isn’t the innovation (although there is a tremendous skill in designing it and packaging is a key part of what people actually buy), the innovation is in new products. But the knowledge that a brand can have clear blue water around their existing assets means that they can invest in innovation. Remember innovation includes new ideas which cost a lot to develop but don’t work. But that is an unavoidable cost.

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wavechange

I am likely to buy a product in a shop rather than by mail order from a company in Jersey. I have thought about the ethics of supermarkets forcing down prices, price fixing, putting small shops out of business and the well-known examples of exploitation of overseas workers, but I had not considered selling from Jersey as an ethical matter. I will think about it when I’m buying online. Maybe others might like to make an input.

I’m relieved to hear you don’t regard packaging as innovation. I do buy tinned biscuits because the tins are handy storage containers, but if the packaging is influencing my choice, I am not aware of this. Having said that, I do avoid Tesco’s budget price food range because I don’t know how wholesome it might be. The recent horsemeat incident did provide some evidence that cheaper products with smaller margins can be more at risk.

Perhaps the way to help companies to recoup the costs of innovation is food patents. Arguably, patents do not have a long enough life to encourage drug companies time to recoup the research, development and testing of a new antibiotic (including the cost of failures), but it might work well for innovation in food. Sometimes I see innovation as a problem and what we need is wholesome products rather than the latest development in food processing.

Perhaps you can tell me why large brands change their packaging so frequently, if it takes tremendous skill (and presumably money) to design it. I can think of several times when I have bought a different brand because I have failed to spot the familiar brand in its new packaging.

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alfa

I occasionally shop in Lidl and resent the trickery they use.

For anyone who doesn’t know, they put their prices above their products. So they will have something on special offer, then later put it above something else with the same price as the previous special offer.

They once had Typhoo tea on special offer, the next time I was in the store, they had tea in a very similar box in exactly the same place with a name that had “OO” in it. (Can’t remember the exact name.) The price underneath was the same as the previous Typhoo special offer price. The real price above however, was much higher. I bet a few people got caught out with that one.

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Walter

Here here.

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gradivus

Alfa,

Here’s a tip:

Even if you can’t REMEMBER the exact name, try spending one second of your time READING the exact name. And the price.

Problem solved!

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Walter

No you are wrong. The legal test for passing off is “a fool in a hurry”

Your consumer rights protect you from misleading packaging. You are entitled to be a non savvy shopper, busy, on the phone, kids screaming and the car ticket running out and be scanning the aisles quickly and under these circumstances, still be able to distinguish the brand from the copycat.

I simply do not understand how you can as a Which? Reader want to give away perfectly helpful and important consumer rights and deny them to people who are

Anyway what good does reading a name help? Do you remember during the Jubillee all the joke names brands came out with like MA’ MITE – same packaging so it’s obvious it’s the same brand. Brands do this all the time now. Bring out special editions or new flavours with similar names but not identical. If you (or someone less intelligent or observant than you) is unsure if this is the brand or not then the copycat is by definition passing off.

Alfa is entitled this consumer protection which is there for this very reason and you should be supporting a fellow consumer

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alfa

If you read my post properly, you might have seen that I did notice the difference.
I was highlighting the deliberate, misleading copycat packaging with the equally confusing and misleading method of price tags that was meant to catch out shoppers.

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alfa

My previous post was in answer to gradivus.

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gradivus

Alfa,

I did read your post properly.

I did see that you’d noticed the difference.

Although my comment was addressed to you (perhaps unfairly, for which I apologise), I was making the general point that you should never buy anything without reading what it is you’re actually buying.

Don’t rely on where in the shop it is.

Don’t rely on it having two ‘o’s.

READ the label.

Walter,

No. I don’t think I am wrong. I’m pretty certain that if you read the label and you read the price, you won’t get caught out by the practice alfa described.

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Walter

Gradivus.. You are wrong… as a matter of fact, not opinion. The legal test is as I said. You may not like it, but that’s the law. What if you are partially sighted. Or not from UK or an older person who maybe more easily confused.

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gradivus

Walter,

I repeat…

If I read what it says on the packaging, and I read what it says on the price sticker, then I will not be duped.

That seems pretty clear cut fact to me. Not opinion. My statement has nothing whatsoever to do with legal tests. It’s what is known as caveat emptor – buyer beware.

I agree fully 100% with you about people with sight problems etc. And I’m a strong supporter of consumer rights in general.

But the tone of many on this conversation, and elsewhere on this topic on Which?, bothers me greatly. People have to take some responsibility for their lives. It’s a matter of where do we draw the line, and some seem to want to draw the line in a fairly ludicrous position.

The Which? Connect newsletter that drew me into this conversation is a classic example. It shows a picture of two packs of cream crackers and “poses the challenge” to identify which are the Jacob’s cream crackers. Hmm, tough challenge that. Oh, perhaps it’s the pack with “Jacob’s” written on it in big letters?

Honestly, Walter, I suspect I’ve been captured by aliens during my sleep and taken to some sort of parallel universe where people move around like zombies having lost all common sense and are totally confused if two objects are the same colour.

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Walter

Look Gradvius, the legal test for passing off is fundamental to the debate. You are peeved about eroding standards in people not taking responsibility for their lives (something i totally agree with you actually) and Im sure you agree with me, that the standard of public debate is another thing which is falling in standards and which is important to us Brits. You joined a discussion where we are talking essentially about the ethics and business fall out from rampant passing off.

In the course of this discussion it seems prudent to me to layout the legal test for passing off. And that is “a fool in a hurry”. This is a much lower standard of proof than normal (which btw is known as “the man on the clap ham omnibus”). The reason the standard of proof is lower in passing off than in other tests of ‘reasonableness’ is because the law understands the importance to business of brand and IP protection. It also enshrines in law a standard of differentiation that a consumer can place on the quality of products.

I am sure people can read the names but you are being too simplistic. Seriously there are professorships and tomes written by giants of business leaders and psychologists who will tell you the difference the slightest emulation of a brand attribute or shelf position, even box shape and size makes to the consumer in the sub conscious. If you stop and think about it, you will realise that even though you know the name Jacobs isn’t on there, the colours and other features copied give you a very deep and sub-conscious confidence to buy something totally unknown to you, which you wouldn’t have if those elements weren’t copied.

Bottom line, copycats copy the packaging of brands to ride on their tailcoats. The fact that some people even get confused by which item they are buying is a different matter but still it is of significance that the legal test for passing off would easily have been breached by evidence that a consumer Alfa was indeed confused.

Off topic… I am buying car insurance right now. I’ve been with the same people for 10 years. Always been covered to drive a second car in emergency like dropping parents at airport. We all know this to be a standard inclusion. With luck, I found out that the comparison shopping deals have taken that cover out. But they do not say anywhere (even if you read the policy carefully which I did) that this is excluded (or included). They say deep in the policy wording that you will find out on your certificate if its included). Luckily I phoned and asked. It was not covered. The company said on their phone service this exclusion pops up on their screens to warn customers such is the widespread belief that all comprehensive policies include this cover. But the website doesn’t mention it. You can go all the way through and buy the policy without being told this wasn’t covered. I searched for a forum to see what others had to say. there were a lot of similar stories but some troll replied to a woman who said she was fined by police when it turned out she had no insurance to drive her daughters car to the train station, “is is so hard to read a certificate of insurance”. I found that so irritating because it is so easy to be smart when the easyjet system of life is what you have grown up with but people 40+ have never known comprehensive insurance without this cover. But it’s funny, when that naive youngster grows up he will find that the next wave of price cutters will exclude a factor which he had come to see as standard and be caught out himself.

The moral of the story is, there is a difference between taking responsibly for your lives and blaming someone for making a mistake when the packaging is deliberately designed to do that very thing.

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gradivus

Walter.

At no point have I disagreed about what you are saying about the law, legal tests or passing off. Never. I know virtually nothing about these things, almost certainly less than you. For the purposes of this debate, I accept your statements completely.

But I do know that if you read the label and price sticker you won’t be caught out (OK, let’s be pedantic – “your chances of being ripped off are reduced dramatically”).

To move the debate along – if the law is as you state then this debate is pointless. The famous brands can presumably stop the ‘copycats’ through the courts?

Incidentally, re your car insurance (and this is meant to be helpful, not a debating point, my friend). As far as I know, comprehensive cover for driving other people’s cars largely ended several years ago. In recent times cover for driving other cars has usually been Road Traffic Act only, i.e. the very basic minimum cover required by law and not really suitable for real-world use. I believe the reasoning behind this was to remove the need for temporary cover notes. I think a similar principle applies if you take your car abroad.

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Walter

Thanks for your to reply Gradivus.

Courts: the reason courts are not a viable option has been written about earlier. I touched on it in various posts. Firstly the copycats push to the limits without infringing trademarks. Passing off gives brands a broader degree of protection but it’s much harder and expensive to prove. And all they’d do is make a minor change. But the main reason with supermarkets is that they’d be sueing their biggest customers. The supermarkets tell us they will copy us. They know we can’t afford to do anything.

Driving: as I said it’s been a 6 years with current insurer and I’ve bought polices for 20 years before that. You may well be right that this trend started a few years back and is now commonplace but I assure you from what I’ve read and all the insurance brokers I’ve spoken to without exception in last few days says hardly anyone Knows. I reckon there are thousands of people thus second innocently breaking the law driving uninsured bug thinking they are. The consequences are very severe. If you injured someone they’d have no decent compensation and it would be prison for the driver potentially. This is a scandal it’s not mandatory for policies without this cover to be upfront before purchase. People don’t check certificate small print. They presume it’s what they bought and their name and car registration plate us correct.

Here is a recent article from confused.com
http://www.confused.com/car-insurance/articles/when-fully-comp-doesnt-let-you-drive-any-motor

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Walter

Wow its amazing Gradivus that 4 people have thumbed up your post so quickly! And on a thread where we are debating passing off and misrepresenting. Ahh the irony..

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Walter

For the record, I have not tumbled up my post. I wonder who it could be.

I wouldn’t worry too much about the thumb votes. BTW as a regular commenter it would be great if you uploaded an avatar like other commenters. You can do so here http://conversation.which.co.uk/your-account/

If you haven’t registered yet, you can do so here: http://conversation.which.co.uk/register/

Hello everyone, great to see this debate doing well. Please can I just remind you of our commenting guidelines: http://conversation.which.co.uk/commenting-guidelines Although you may disagree with each other, please try and be polite. Thanks.

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wavechange

I see there is a new Conversation about how people are struggling to pay for food:

http://conversation.which.co.uk/consumer-rights/your-view-do-we-struggle-to-pay-for-food/

I don’t condone attempts to confuse consumers with copycat products or enticing them into buying inferior goods, but can certainly understand the increasing popularity of retailer brands in the current economic climate.

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wavechange

Walter

I remember the debate over whether Jaffa Cakes are biscuits or cakes, but I had assumed that the name was one company’s trademark. When in the dreaded Tesco this evening, I noticed that Tesco also sells Jaffa Cakes. There’s very little similarity in packaging. Similar colours are used but in a completely different way. After doing some reading, I realise that Tesco is not alone, and various companies produce Jaffa Cakes

I know little of branding but I would have guessed that copying a distinctive name like Jaffa Cakes is far worse than the example of copycat chocolate digestive biscuits that share similarities in packaging but have distinct differences. What is your view on this, Walter?

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Walter

Jaffa cakes… This was a case I had no idea about until you posted. I did a little little looking up but we’ve had a family event so despite the delay in replying I do not have anything to offer but my hunches. So here goes…

It turns out that Jaffa Cakes is not a trademark. There may be several reasons. Probably the start was as simple as this product dates from a long time ago and someone forgot to do it. I cannot believe that during ‘cakegate’ in the 90s the lawyers didn’t pick this up. The reasons why they didn’t then trademark it are potentially very revealing. (note, unlike patents, you can tm after product is on market ie. disclosed). 1. Had there already been long term copies of the name and so it would be too difficult for them to argue they had ownership. 2. Had the term become generic in that any spongy chocolate orange snack was called a jaffa cake and therefore it was generic (like aspirin, hoover, sellotape etc). 3. Most interestingly, another grounds against granting a tm is it is ‘descriptive’. So you can’t tm coffee cup if the product is a coffee cup. Is jaffa cake descriptive. Well oranges are very associated with Jaffa but I think that’s family distinct and trademarkable. But cakes… Hmm actually that’s the novel part for me. I mean I’d argue till the cows came home to an IP court that thus is a biscuit do calling it a cake shows its not descriptive. Of course, the VAT case lawyers had to argue the exact opposite. That the product was a cake do as to be VAT exempt. In that case, the name could be considered descriptive and therefore not trademarkable.

It’s funny you say that Tesco version is called Jaffa Cakes but the packaging is quite different (compared with different named generics) and I think that is because the same name means any packaging copying would lead to a passing off action. Passing off is like the common law ‘version’ of trademark or design protection. It’s hard to prove because there’s no certificate of ownership to contest but it generally works as it sounds.. Is someone else passing off to be you. A good argument that products in Aldi are not passing off is because despite the shameless copying, the name is very different so even a fool in a hurry can tell which brand is which. With Jaffa Cakes, the design difference is much more important.

If I were are McVities I would market the McVities part of the name very hard. Always calling them McVities Jaffa Cakes, maybe move to McVities Jaffs after years of shifting the marketing messages. And I’d trademark Jaffs before starting!

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wavechange

I assume that the new Intellectual Property Bill could help deal with the problem of copycat packaging:

http://www.ipo.gov.uk/about/press/press-release/press-release-2013/press-release-20130510.htm

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Walter

Hi Wavechange, thanks for the link from IPO. I was completely unaware of this and it’s incredibly good news for our company and all the people who work on design in this country. The ‘notes for editors’ at the section at the end is very revealing as to the importance of this.

I have forwarded the link not just to managers but to our supply partners and had lots of very positive responses. We need to pull you out of retirement my friend ;-)

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wavechange

At last I’ve managed to post something that hasn’t annoyed you, Walter. :-)
I will be following developments as the IP Bill progresses.

If I have to pay to support the cost of advertising, fancy packaging designs, executives’ bonuses and shareholders’ dividends by supporting brand leaders, I might have to come out of retirement.

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kesbob

Would your ‘copycating’ refer to online passport operators. Whilst searching the internet to find out the cost off a passport I clicked onto a passport website offering online facilities. I filled in the form and paid £34. This £34 was for this organisation to fill in a form I had already filled in by hand and I still had to pay the proper passport fee. I have been in communication with the Passport Office and they inform me that when searching the web for advice on Passport or Visa Applications a number of rouge websites will pop up which are independent from the Identity and Passport Service and designed to be confused with their official website. The passport ‘operator’ refuses to give details of where they are based and now have my personal information and credit card details.

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John Ward

These intermediaries should be outlawed unless they are officially accredited .

This trick also appears if you want to apply for, or renew, a European health insurance card [EHIC] – various unofficial sites try to get you to part with money for a facility that is free of charge.

People who are not confident about making a passport application can use the very efficient, reliable and trustworthy service provided by the Post Office that ensures that all the documents are correct and securely transmitted and that the right payment is properly made and receipted. There is a small cahrge for this service but it includes guaranteed delivery so it is probably worth it.

I don’t think there is a similar facility for making Visa applications to foreign embassies and each country has its own requirements, but I found making an on-line ESTA application [electronic system for travel authroization - for visiting the USA] quite straightforward [so long as you have your valid UK passport in front of you when you do it as much of the required information is there] and there is no need to use intermediaries. The credit card payment facility was also secure and receipted.

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Walter

Sorry to hear you have been the victim of an Internet scam. In some ways it is similar but in others it’s not. It depends if the service you used was legitimate and safe but tricked you onto using their Web services rather than the official passport office website by appearing similar. Or if is a fraudulent scam. If the latter then we are talking about illegal activity. You might need to contact the police if you have sent them your old passport. And certainly one personally would cancel any credit card I used in such a fraudulent transaction.

Remember to always check the URL of any website before you start paying. ‘Never’ click links in phishing emails. Always search for the site you want in Google and go in via that route. Or type manually the official site.

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wavechange

Readers might be interested in the Second Reading of the Intellectual Property Bill:
http://www.bbc.co.uk/democracylive/house-of-lords-22625603

I nearly fell asleep watching this, and it would be a great help if speakers some visual aids to help make a more effective and shorter presentation.

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Mario

What I don’t understand is how the likes of Aldi can legally use and register someone’s surname to use as one of their own generic brand names? For example, Aldi have arrange of condiments/sauces etc. with the name “Bramwells” which sounds like an old English brand name who could have been in that business for a good hundred years or more but just suppose a young/present day person named Bramwell intent on producing condiments and so on comes to register their product(s), they could end up being prohibited by the corporate/legal team at Aldi?? Doesn’t sound right to me.

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John Ward

There seem to be a growing number of made-up “brands” nowadays playing on the nostalgia theme with contrived traditional-sounding names. I notice it more around Christmas-time when a lot of gift products of dubious provenance are on sale; toiletries seem to be particularly prone to false imitation with names like “Heathrow & Gatwick” or “Sydenham & Penge” . . . err, no; I made those up.

Unfortunately for new entrants into any business, there has always been the first mover advantage with company and brand names and especially trade marks; heaven help Mr. D. Reg. Ford if he wants to make motor cars. Good brands [not necessarily including the actual product specifications] sell for millions of pounds and most of the major consumer goods corporations have a cupboard full of old brand names from historic mergers and acquisitions that they can roll out to add lustre to a new cluster of products. As Mario supposes above, the Courts take “passing-off” seriously if a brand-owner challenges an upstart. Some reputable and well-known companies licence other companies to use their name for a different and non-competitive product. Wilkinson Sword products encompass many things from razor blades to garden spades but they are from entirely separate companies. Pringle hosiery and knitwear has great provenance but the socks and sweaters went their separate ways some time ago; the cachet of the Pringle name is now also attached to products with no Scottish heritage whatsoever. Talking of which, the House of Fraser [with impeccable Scottish ancestry] has a knitwear own-label brand “Howick” – probably not made in Hawick [pronounced Hoyk], the home of luxury cashmere and merino woollens.

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wavechange

Nowadays, the name Pringle brings to my mind the unfortunate result of a washing powder manufacturer combining powdered potato with the contents of a chemistry lab. :-(

It does annoy me when respected brands that have disappeared are resurrected and used to sell cheap tat.

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John Ward

What could there possibly be not to like about these gastronomic delights available in multiple “flavours”, designed for sharing, and stackable too? So appealing to the modern host and hostess and much more sophisticated than the traditional potato crisp I suppose. I think there was a “mint chocolate” flavour version on sale in Tesco’s before the festive furlough. Interestingly, the “Pringles” brand itself was sold by Proctor & Gamble to Kelloggs a year or two ago [made for sharing, you see].

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wavechange

Pringles. Gastronomic delights? Stand up straight and get that tongue out of your cheek. :-)

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