The sincerest form of flattery? Mary Bleahene picks through the legal minefield of intellectual-property rights and own-label ‘lookalikes’ – and assesses the findings of two recent court cases in Ireland and Britain

Imitation may be the sincerest form of flattery, but the copying by some retailers of the packaging or other features of the appearance of established branded products can diminish and dilute brand distinctiveness.

It can also mislead consumers regarding the provenance or other characteristics of retail products. The circulation of lookalike products in retail is arguably, therefore, neither good for established brands nor for shoppers.

Lookalike or ‘copycat’ products (as they are sometimes called) adopt distinctive features of the packaging of leading brands to create the often mistaken impression that they enjoy the same qualities, origin, or characteristics of the established brands, but usually retail for a much lower price.

The lookalike practice can adversely affect both large and small niche brands, and often enables the lookalike retailers to boost their sales without the same advertising or marketing investment as the brand owners.

Looks like me

Ireland and Britain, unlike many EU countries, do not have dedicated unfair competition legislation that protects brand owners against the marketing of lookalike products, even in situations where the lookalikes may be deceptively similar, causing confusion.

In its absence, brand owners must rely instead on the existing legal framework of registered and unregistered intellectual-property rights, namely registered trademarks, passing-off, registered/unregistered designs, and copyright.

In general, registered and common-law trademark rights are the most effective IP rights, but not the only ones. The common-law tort of passing-off, or its threat, can be effective in combating lookalikes.

For a successful passing-off action, the brand owner must prove:

• Brand reputation,
• Misrepresentation likely to deceive or mislead, and
• Resultant brand damage

Same direction

In most cases, the lookalike will have a different brand name to the established brand, and this factor has sometimes been held sufficient to avoid shoppers being misled or deceived.

However, in the landmark case of McCambridge v Brennan Bakeries ([2012] IESC 46), the Supreme Court found passing-off by the Brennan’s lookalike sliced bread, notwithstanding that it was clearly marketed under a different brand name.

The court held that, while the individual similarities between the packages were insufficient on their own to constitute misrepresentation, the Brennan’s lookalike packaging had to be viewed in its entirety.

The court found that the combination of generic features with “less generic features” copied by Brennans went “beyond the realm of mere resemblance into imitation”, causing a misrepresentation amounting to passing-off.

Although passing-off provides protection where shoppers are deceived or misled, it does not protect against mistaken association or the bringing to mind of the brand leader.

Having said that, when combined with other registered IP rights, such as registered trademarks, it can be very helpful.

Same old brand new you

In selecting products to buy, market research shows that shoppers use primarily colour, then shape, then design of packaging to make quick purchasing decisions.

Fortunately, brand owners can register different packaging features, such as colour, colour combinations, shape of goods, brand imagery, and the overall packaging as trademarks under current legislation.

Irish and British legislation both protect against similar marks causing confusion, including the likelihood of economic association. In addition, the legislation protects marks with a reputation where a lookalike product takes unfair advantage of the reputation without due cause.

This special treatment for reputed packaging marks was recently explored by the English Court of Appeal in Thatcher’s v Aldi ([2025] EWCA Civ 5), to the advantage of the brand leader.

Thatcher’s had registered UK trademark number 3489711 for a figurative mark for “cider; alcoholic beverages, except beer” in Class 33.

Thatcher’s alleged that the use of lookalike packaging for cider by a discount retailer was trademark infringement because the packaging took unfair advantage of its reputation in its registered mark.

The judge agreed that the lookalike cider packaging called the registered mark to mind, notwithstanding no actual confusion, and that the lookalike retailer obtained an unfair advantage because it could then benefit from Thatcher’s development and promotion, rather than competing on its own merits and promotion.

The lookalike product achieved highly substantial sales in a short period of time without promotion, which enabled the court to legitimately infer that the lookalike product could not have achieved such sales without consumers making a link between the registered reputed mark and the lookalike packaging.

The song remains the same

Registered designs can also assist brand owners where the design of packaging or individual packaging features are new and have individual character (that is, they produce a different overall impression to previous designs or design features).

In most cases, the novelty requirement means that the designs must be registered in the early stages of their development – sometimes before they are launched.

It is difficult for brand owners to predict in advance what features of packaging will be borrowed in lookalike products, and if they merit the cost of registered design protection – this is a disadvantage of the registered design system.

Most lookalike brands do not obviously copy directly from the brand leader and, instead, seek to reproduce the concept, theme, or idea of the packaging, making copyright less effective Similar problems arise with ‘unregistered design right’, which requires that the design be original and not commonplace.

Brands frequently update packaging to keep up with consumer tastes – registering many iterations of designs is expensive and time consuming, as is keeping track of unregistered design rights in successive packaging versions.

As with designs, copyright in the original artwork of packaging may also be asserted, provided that the lookalike copies a substantial part of the copyright work.

However, most lookalike brands do not obviously copy directly from the brand leader and, instead, seek to reproduce the concept, theme, or idea of the packaging, making copyright less effective.

Never be the same again

Established and reputed brands that are likely to inspire lookalikes should take heart from the recent Court of Appeal (England and Wales) decision, which found that establishing a link in the mind of consumers with reputed brands, thereby profiting from their reputation, can amount to registered trademark infringement.

In addition, the trend of the Irish courts to accept that passing-off can arise in lookalike branding because of the overall similarity in packaging, regardless of the use of different brand names, should assist brand owners in their efforts to preserve their exclusivity on the shelves of Irish supermarkets.

Businesses that wish to protect against lookalikes should review, in particular, their registered trademark portfolios to ensure that they have all the necessary trademark registrations in place for their packaging designs.

On the other hand, supermarkets developing own brands that may be inspired by brand leaders would be well advised to carry out proper trademark availability searches before committing to packaging designs.

Mary Bleahene is a registered trademark agent and a member of the Law Society’s Intellectual Property and Data Protection Committee.