Ministers in the Department for Business Innovation & Skills (BIS) have undertaken a consultation on the case for granting businesses civil injunctive power in respect of so called “copycat packaging” (product packaging that is designed to give it the look and feel of a competing well-known brand, distinct from counterfeiting as it normally doesn’t involve copying trade marks).
Under the Consumer Protection from Unfair Trading Regulations 2008 (CPRs), there are provisions prohibiting traders from engaging in certain misleading actions (including marketing a product in a way which creates confusion with competitor products) and corresponding criminal and civil remedies under the CPRs and Enterprise Act 2002, that can be enforced by “general enforcers” (the Competition and Markets Authority, Local Authority Trading Standards and Trade and Investment in Northern Ireland). However, no power for businesses to take civil injunctive action exists.
The consultation highlighted the difficult balance around rights of enforcement. A right for businesses to take civil injunctive action in respect of “copycat packaging” wasn’t originally included in the CPRs on the grounds that there were criminal and civil remedies that could be enforced by the “general enforcers”; that although consumers were sometimes misled by “copycat packaging” there was no real detriment; and allowing a right for business to business enforcement could lead to a high number of disputes. However, many businesses feel that the “general enforcers” are not devoting sufficient resource to the matter resulting in an enforcement gap that needs to be addressed.
The consultation focused on (amongst other things): evidence of the existence of an enforcement gap, the extent to which consumer detriment arises from “copycat packaging”, and the costs and benefits of allowing business to business enforcement.
The consultation closed on 19 May 2014 and a final report will be published in September 2014.