Brand copycatting has always been big business. Imitation has often proved a safe way for newcomers to join major players in a market and to benefit by association from some values already invested in existing brands.
However, it is often hard to make a distinction between what is copying and what is simply generic brand identity. Likewise, it is difficult to draw the line between promotional ideas in the public domain, free for all marketers to draw on (such as “buy one, get one free” or “25 per cent off”) and ideas which are genuinely original.
The law makes no distinction on this second point. The UK has no copyright law to protect ideas or techniques. Simon Clark, a solicitor with law firm Theodore Goddard, says: “There are no rights over an idea (unless it is an invention) in this country. Copyright doesn’t protect an idea, simply the way that idea is expressed. This means that although copying a script would be a breach of copyright, copying a storyline would not.”
A recent case involving filmmaker Mehdi Norowzian and Guinness illustrates Clark’s point. Norowzian unsuccessfully attempted to sue Guinness and Dublin-based advertising agency Arks over an ad, produced by the agency, which depicted a man dancing to catchy mambo/salsa music while, in the foreground, a glass of Guinness completed its settling process. The film director claimed this ad was an infringement of his copyright in a short film he had made previously. He argued that the Guinness ad used similar camera and editing techniques, including jump-cuts and speeded up film and also demonstrated other allegedly common features such as the ordinary appearance of the character and the fact that the character was moving on his own to music in front of a simple backdrop.
The judge in the case accepted the defendant’s contention that, to qualify as a dramatic work, the work must be capable of being performed, which the final film (in both cases) patently could not. He stated that, what Norowzian was seeking to protect, was the originality of his finished film as opposed to the originality of any dramatic work recorded by his film, but that current copyright legislation does not cover the use of camera and editing techniques. In other words, combinations of styles and techniques do not give their innovators a monopoly over their use.
Of course, for many brands, copying the ideas – and even the look and structure – of a dominant brand may be the only way to gain recognition in the market. Marcus Mitchell, head of marketing at CLK, says: “What often happens is one brand will set a trend and others will follow. British Airways’ Executive Club, for instance, is the epitome of a loyalty scheme in the UK – and its three-tier structure and blue, silver and gold colour scheme are certainly echoed by other airlines and travel companies. They’ve started to set the rules in consumers’ minds for the look of that sector and they, and companies in the same position, should not feel threatened when others follow the same rules.”
He adds: “New entrants and second-level players have to decide whether to follow brand rules set up by the market leader or to break them. What usually works best is to balance playing safe – which reassures consumers – and showing innovation – which can highlight your own points of difference. Virgin managed to do this very well by breaking with the established need for a first and a business class and creating its own ‘upper’ class. Doing this fitted its brand values and therefore customer expectations of Virgin as ‘alternative’ and, just as important, Virgin was prepared to invest heavily in promoting the difference. Without these two factors – innovation making sense within brand identity and a willingness to back it – you risk creating a barrier to sales instead of pulling people towards you.”
When it comes to promotions, it is particularly difficult to spot real originality and the point of difference, perhaps because of the short-lived nature of most campaigns. A quick history lesson demonstrates how this year’s innovation becomes next year’s cliché and accepted part of the mix.
In the late Fifties, Procter & Gamble ran one of the first on-pack promotions, giving soap powder purchasers the opportunity to send away for plastic daffodils. At the time this mechanism was seen as amazingly innovative and drew an extremely high response rate. However, in the packaged goods market gifting and coupons have since become so standard that most manufacturers have to keep them in the mix simply in order to keep their heads above water.
Mitchell says: “Faced with this situation, companies need to maintain a point of difference by allowing brands to develop without getting too bogged down in promo- tional mechanisms. Flora has done this very well. In the Seventies and Eighties advertising for Flora targeted housewives and told them the margarine would keep their families healthy. Flora recognised this gatekeeper strategy was a bit old-fashioned and shifted ground to present a more inclusive, voluntary approach to healthy living. At this point sponsorship of the London Marathon really fitted the brand. Doubtless Flora will move on again – but the brand has demonstrated an ability to dovetail into the times and to keep abreast of core ‘healthy living’ values.”
Copycatting is not simply a problem for airlines and packaged goods brands. Until recently Disney had a monopoly on its film and video market. Now with the arrival of Dreamworks (Antz and Prince of Egypt) and with 20th Century Fox (Anastasia) muscling in on Disney’s patch, how is the children’s animation giant reacting?
Helen Stratton, marketing director at Disney Videos, says: “We are always trying to be innovative, to give each campaign and release a real point of difference and to create in-store magic. We know Disney Videos is a trusted brand and we want the consumer to feel we give them something special. Ultimately our aim is to make an extra effort to be different, both to stay ahead of competition and, above all, to keep customers happy.”
Counterfeiting, as opposed to copyright infringement, is perhaps a bigger issue for many involved in promotions. While, by its ephemeral nature, promotional merchandise is rarely copied, many branded goods used in promotions are under constant attack from unscrupulous manufacturers.
Micky Rodrigues managing director of DSL, a company which designs, sources and supplies sports and leisure goods for a raft of blue chip businesses, says: “When brand owners discover a proven case of counterfeiting they come down hard and make sure the world hears about it. But these efforts prevent only a fraction of counterfeit goods reaching the consumer.
“Products can be authenticated by using special codes, neck labels which are difficult to copy, and holographic swing tickets with embedded computerised information.
“The majority of counterfeits are products which have been available for one or two seasons and have a proven track record of popularity.
“If top designers such as Ralph Lauren, Hugo Boss and Armani produced high specification garments there would be fewer counterfeit ones. But most of us enjoy wearing polo necks and T-shirts – simple classic garments which are easy to copy. A product which involves complex design, structure and advanced technology is fairly safe from counterfeiting.”
This begs the question, what do consumers think about copycatting, if so many of us are, apparently, prepared to accept imitation goods – what is it that we care about?
A partial an-swer to this is revealed through some research conducted by CLK in October last year. A range of adult consumers from all backgrounds and age groups were asked various questions about copycatting of brands. While over half said supermarkets shouldn’t be allowed to make their own products look like name brands and nearly half said it was very easy to make a mistake confusing the two; in another part of the survey over half of respondents said they were happy to buy own brands that looked like named brands.
Says Mitchell: “At first glance it looks as if people want to have their cake and eat it. But the underlying message seems to be that although it’s not totally fair, they don’t mind much as long as the imitation product is up to the standard of the named brand.”
It seems likely that what consumers really object to is not the imitation itself – most understand the commercial reasons for copying successful brands – but the attempt to fool them. The majority of sales promotion professionals will know this already but, as it is virtually impossible to protect a promotional mechanism or sales idea, perhaps knowing more about consumer attitudes to imitation will help focus creative minds on building brands with a point of difference, maintaining standards where an element of imitation is deemed important, and being open with consumers about what the proposition actually is.