What you see is not always what you get

The theory that supermarkets confuse consumers into making wrong purchase choices by bringing out own-label goods with packaging that copies branded products has been put to the test by a study seen by Marketing Week. Jo Roberts reports.

shopping

As shoppers robotically walk up and down the aisles filling their trolleys with the weekly shop, supermarkets across the country are confusing customers into buying the wrong products, according to a study commissioned by the British Brands Group, seen first by Marketing Week.

Both Unilever-owned I Can’t Believe It’s Not Butter and GSK’s Sensodyne toothpaste are being confused with Asda’s You’d ButterBelieve It and Tesco Pro-tech toothpaste, according to the research.

It is perhaps no great surprise that supermarket brands that look very similar totop-selling branded goods may be put into the shopping basket instead of the intended item on shoppers’ lists. This confusion is damaging to brands that have invested money and time in developing products, argues John Noble, director at the British Brands Group.

He says/ “If you ask consumers to pick out a selection of different looking products they can do that pretty quickly. As soon as you introduce a copy into the selection then they take more time and make more errors.

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Spreading confusion: I Can’t Believe It’s Not Butter sits next to Asda own-brand You Butter Believe It

Repeat purchases

Noble adds: “On repeat purchases we tend to buy things on semi-automatic so if the packaging is similar then this study demonstrates that consumers are more likely to make mistakes.”

The British Brands Group commissioned a questionnaire study of more than 1,000 participants in 2009, which discovered that 33% of supermarket shoppers admitted to accidentally buying the wrong product because the packaging looked so similar to the actual brand. Younger people were most prone to such errors, with 54% of 16to 24-year-olds saying they put the wrong product in their basket of shopping.

The latest study, carried out by Mountainview Learning and University College London, uses neuroscience techniques to show that consumers are still mistakenly buying copycat supermarket brands from a variety of categories, including shampoo, energy drinks and toothpaste.

This is despite a ruling introduced in 2008, which includes a clause that says a copy is one that gains unfair competitive advantage.

Noble claims the laws governing copycat branding are much more effective in Europe, but policy makers in the UK are starting to take the issue much more seriously. The Intellectual Property Office has commissioned a study into the consumer and business harm that copycat branding causes and the results are due out in a couple of months.

If this practice isn’t tackled, brands will be turned into commodities, adds Noble. “If the copy is much cheaper and if people think that it comes from the same factory as the original they’re going to think the original is a bit of a rip off. This causes reputational damage.”

The other key issue is brands feeling unable to tackle issues of copying when they have to forge close commercial relationships with supermarkets. This makes it difficult for brands to take legal action, says Mike Gardner, a specialist IP lawyer at Wedlake Bell. There is a “commercial conundrum that is the desire not to upset the customer”.

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Looks can deceive: Sensodyne competes for sales against Tesco’s Pro-tech toothpaste

Noble argues the law in the UK is not being enforced in the way it should. “We don’t feel that brand owners have the right tools to tackle the problem, and negotiate with retailers. A lot of retailers would laugh in their face if they made a complaint because it is so implausible that it would go to court. It’s so difficult to show what’s going on in a consumer’s mind in court and it is very difficult to bring a case.”

That’s why the law has to be “crystal clear and needs to be enforceable and predictable,” adds Noble. “We hope the use of neuroscience will strengthen the evidence for policy makers that this packaging does have a damaging effect on consumer decision making. There is consumer manipulation going on here. This area is growing in incidence and needs to be stopped.”

The British Brands Group has been fighting against copycat brands since its launch in 1994 but “we still haven’t seen positive action from policy makers”, Noble admits.

The complex law in this area and the expense of bringing a legal case to court, along with the complex commercial relationship between brands and supermarkets means that while this study demonstrates there is confusion amongst shoppers, it won’t be easy to tackle this tricky area of copycat brands.

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Methodology

The Effect of Branding on Consumer Choice is a research report that has been put together by Mountainview Learning, along with University College London. Part of this research focuses on copycat branding and tests the theory that similar looking supermarket own-label brands confuse consumers into making the wrong choice.

A total of 35 participants were observed using eye-tracking technology. An established brand was displayed next to a copycat supermarket brand, and they were also tested alongside brands that did not look similar. Five categories were tested in the study – shampoo, toothpaste, dishwasher tablets, energy drinks and butter.

Three scenarios were tested. First, the established brand was put next to the copycat product and three filler brands. Second, participants saw the established brand put next to a non-copy supermarket label and three filler brands. The third test observed how participants reacted to the key brand and four filler products.

Researchers tested reaction times of participants and found that participants were slower to identify the key brand when the copycat brand was present, than in the other two test scenarios.

54% of 16 to 24-year-olds say they put the wrong product in their basket of shopping

33% of supermarket shoppers admit to accidentally buying the wrong product because the packaging looked so similar to the actual brand

The frontline

We ask experts on the frontline whether our ‘trends’ research matches their experience on the ground

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Kevin Vyse
UK director
The Institute of Packaging Professionals

I’m not at all surprised by the findings of this research. The supermarkets benefit from that confusion and want it to continue. Copycat packaging is a cyclical issue. If you think back to the 1990s and the last recession there was a lot of copycat branding going on.

If a supermarket is pushing the envelope on the design it’s because it thinks it can gain commercial advantage but the consumer ends up being really confused.

The consumer initially loves the copy because they can save money by buying the cheaper version but then eventually the shopper becomes very cynical because they don’t think the product tastes as good or performs as well. The copycat product doesn’t have the heart and soul that the brand does so you do find that after a year or so the cynicism sets in and people start drifting back to the brand. In the long run, it isn’t good for the supermarkets either.

Packaging is the clothes that the brands wear. It makes you want to eat the contentsdesigners really understand the connection between the eye and your taste buds. Supermarkets have to build trust in theirown icons but that trust is being broken because they are effectively stealing their ideas from next door.

But all the evidence shows that the supermarkets will carry on with this practice. We would be delighted to back a law that enforces copyright. At the moment it’s a brave brand that takes on a supermarket.

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Mike Gardner
Partner and head of commercial, IP and IT law
Wedlake Bell

We’ve all been down the aisle and seen how closely products are packaged. There are two issues here. First, there is the legal issue of whether the brand can do anything about it. The commercial issue is that the supermarkets and brands are in bed with each other. Retailers are massive customers for brands and they don’t want to sue their customers. That is the significant issue that gets in the way of a lot of potential lawsuits.

The law is sometimes quite complicated, but there are usually two avenues open to brands. One is based on trademark rights. Even if they don’t have a trademark they can use ‘passing off’ which is where somebody could be confused into thinking that there’s a link between the two products. United Biscuits succeeded in a case against Asda by using the passing off argument when Asda put Puffin biscuits on the shelf [which was deemed to be passing off UB’s Penguin biscuit brand].

I think the law itself is probably adequate but there’s no way it can help with the commercial conundrum which is the desire not to upset the customer. The other issue is that it’s very expensive to rely on the law. The Patents County Court has been set up to try and act for small companies and people with less money. The maximum costs you can pay to the other side are £50,000, and they are thinking of bringing in a small claims court soon to make it even cheaper. But if you’re not a big company, enforcing your rights is very expensive.

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Jane Bickerstaffe
Director
Industry Council for Packaging and the Environment

I’m not surprised by these findings. My husband does the shopping and he often makes this mistake. We tend to focus on the environmental side of packaging so our view on this area is quite simple – if consumers buy something and get home to discover it’s not what they wanted to purchase and have to throw it away and have to go again to buy what they actually want, then that’s not good from an environmental perspective.

Packaging exists to help brands get out into the field and into people’s homes so we give advice on how that supply system can best work. Anything that makes this process more difficult should be challenged. If consumers are buying things that they actually don’t want then this demonstrates that a process is not currently working.

How to protext your work

By Angus Montgomery, Design Week

  • Ask for advice Membership body Anti-Copying in Design (ACID) works to combat design theft, and offers legal advice and IP trackers. The Design Business Association – also a membership group – holds case studies and examples of contracts. The Innovation Bank, which is operated in partnership with Creative Barcode, offers a forum for IP holders to trade IP, while the Intellectual Property Office is the official government body for granting IP rights in the UK, and offers online information and patent service searches. In addition, Calvert Solicitors says: “Designers should not be frightened of seeking legal advice. It is not expensive and can help maximise earning potential from their work.”
  • Copyright your work Using the © symbol or simply writing “copyright” along with the name of the copyright owner and year of publication on the work will, says Calvert, draw attention to the fact that the author asserts owner of this copyright. ACID chief executive Dids Macdonald suggests also writing this on your website and work.
  • Use a non-disclosure agreement or impose confidentiality by other means This is especially useful in a pitch situation. An NDA will prevent the client from releasing details about the pitch work, or using it commercially, says Calvert. Although the legal practice points out that many clients are unwilling to enter into NDA agreements because they don’t want to be subject to restrictions on using the designer’s work, by creating a relationship of confidentiality the designer can protect against client disclosure or use of their work.
  • Use unregistered design rights or registerable IP rights Unregistered design rights exist independently of copyright and focus on the shape or configuration of a product, rather then documents or artistic or literary work. Registerable IP rights, which can include trademarks and patents, give the registrant a monopoly right on the work.
  • Track your IP ACID’s IP tracker is an electronic process of tracking delivery of IP-led and confidential information and costs £5 per sending (£3.50 for ACID members). ACID also operates the Design Data Bank – free for members – which holds dated evidence of the origination of designs, pitches and tenders. The Creative Barcode service offers physical barcodes that the designer can attach to their work and can be tracked through to the project’s commercial launch. The barcodes cost £30 for five.

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