The law is an ass: and we’re not talking here of Derry Irvine’s asinine attempt to award himself a ‘fat cat’ payrise. Its ability to protect brand manufacturers from copycat imitations of their brands and packaging is pitifully inadequate.
The copycat issue, which publicly at least has been dormant for a number of years, reared its head last week in an ugly row between Walkers, the PepsiCo-owned crisp giant, and Tesco. The supermarket chain has just launched an upmarket crisp brand called Temptations which bears an uncanny similarity to Walkers’ Sensations. Walkers is angry that Tesco is not only piggybacking on Walkers’ considerable market success at a fraction of the development cost, but cheekily undercutting Walkers’ prices at the same time.
Walkers chief executive Martin Glenn has threatened to sue. But in reality he would find it very difficult to win his case because, whether his lawyers invoke the passing off laws or trademark and copyright legislation, the barriers of proof remain very high. Tesco’s behaviour may be cynical, but demonstrating inspiration is not, in itself, enough to force even a design change.
Yet, if Tesco has not broken the law, it is arguable that it has broken convention and should carefully consider the consequential damage arising from that. This, at least, is the belief of John Noble, director of the British Brand Group, who says that the supermarket chain is breaking IGD guidelines – a kind of armistice document drawn up in 1996, the last time there was an outbreak of look-a-like hostilities. Tesco itself signed up to it.
Of course, it’s difficult to be too censorious about Tesco when everyone else is up to the same tricks. And that includes Walkers, which has recently received a drubbing from British Bakeries brands director Paula Moss over its plagiarism of the baked bean motif on Hovis packaging. All the same, Tesco might wish to be conciliatory. It is unwise to provoke the wrath of one of the world’s largest brand owners, as Sainsbury’s was forced to concede some years ago when its cola product was made to look a little too much like the Real Thing. Then, too, the publicity resulting from a prolonged spat would not do Tesco any favours. For all that the supermarket chain may argue it is ‘merely’ acting in the consumer’s best interest, its behaviour smacks of sly duplicity.
Yet a substantial problem remains. Brand manufacturers are conservatively reckoned to lose about £10m a year in revenue as a result of retailers’ copycat tactics (and that figure takes no account of such issues as wasted development costs). Most do not have the firepower of a PepsiCo or Coca-Cola, so find it hard to resist. One area where they could improve their performance is packaging which, with its current tendency to generic liveries and small brand logos, leaves a hostage to fortune. But making the packaging harder to imitate will only mitigate the problem; it won’t protect the product inside. The laws need looking at once again.