Imitation might be the sincerest form of flattery, but that’s not much comfort when it’s expressed by the look or shape of a copycat pack leading to a subsequent loss of sales and a creeping dilution of brand integrity.

With more than 55% of sales from their outlets generated by own-label products, the big four multiples are regularly accused of being the major transgressors. Although they’re not the only ones at fault, they have clearly gained the most from what has been a pretty woolly regulatory apparatus for any brand owner seeking to vigorously protect its intellectual property. Even with the introduction of the Unfair Commercial Practices Directive (see below), enforcement is likely to be weak.

Not surprisingly, neither brands nor retailers are exactly queuing up to go public about copycat packaging. Brands have little option other than to seethe inwardly while continuing to tough it out. As British Brands Group director John Noble observes: “It’s surely never good business practice to try to sue your major customer. And if retail own-label products are the biggest culprits, that may well explain why there haven’t been more cases.”

A very few do successfully make it through the courts. In 1997, there was the notable action brought in support of United Biscuits’ Penguin biscuit snack against the Asda own-label Puffin equivalent. However, victory can be relatively hollow; although Puffin was judged to be too closely positioned in relation to the branded product on the grounds of passing off, it is still widely available on Asda shelves.

Remember and recognise

PI3 managing director Chris Griffin says visual identity is crucial in giving brands a competitive advantage: “Consumers don’t read, they recognise. So smart brand owners and smart branding firms try to create distinctive visual elements to help consumers remember and recognise their brands over their rivals’.

“This is a big and long-term investment in visual equity, all too often subject to impersonation at the hands of private label owners. They know that packaging that bears more than a passing resemblance to a legitimate brand can and will mislead the consumer into believing that the impostor has similar characteristics or is of equal quality to the brand, and even is the brand itself. In principle, it’s no different from an artist forging a famous painting and trying to pass it off as genuine.”