On 31 May 2013 the UK Intellectual Property Office (IPO) published the results of its research into "The Impact of Lookalikes - Similar packaging and fast-moving consumer goods". The research is in response to calls from brand owners for specific and effective protection against lookalikes in the UK and brings together a number of findings, including:
- Some consumers do believe that similar looking products have similar characteristics and originate from a similar source;
- A high number of consumers felt disadvantaged by the accidental purchase of a lookalike, but a substantial number saw it as an advantage;
- Only in a limited number of categories was there an association between a reduction in the sales of the brand leader and an increase in the sale of lookalikes; and
- There is a fine line between confusing packaging and the use of "generic cues" to signal to customers.
The research suggests a statutory definition of a lookalike as "good which by virtue of their name, shape, colour, packaging or labelling or any combination thereof, are similar in overall appearance to the goods; but excluding any of those things where they are descriptive, functional or commonplace."
It goes on to conclude that it is probable there is a provision for the prevention of lookalikes within the scope of the Unfair Commercial Practices Directive (2005/29/EC). However, as the Directive is a maximal measure, Member States cannot enact any legislation which would go beyond the provisions made in the Directive. Under the Directive, sale of a lookalike is not prevented except in business-to-business scenarios.
The Consumer Protection from Unfair Trading Regulations 2008 do afford consumers a measure of protection for certain lookalikes. However, this is enforced by trading standards organisations and is therefore subject to budgetary constraints.
The research is just that - research - and does not seek to provide any solutions to the issues addressed. In many respects, it in fact raises more questions but some of its findings, and, in particular the responses from consumers to two surveys, make interesting reading. A full copy of the research can be accessed online from the IPO's website.