We have on a number of occasions reported on trade mark disputes in the UK involving brand owners and budget supermarkets such as Aldi and Lidl. We have been somewhat surprised at the apparent lack of appetite on the part of brand owners (and indeed the courts) to vigorously tackle the issue of supermarket lookalikes.
In our view, a number of these cases have looked like clear cases of passing-off or trade mark infringement. We have also been surprised at the fact that there seems to be widespread acceptance in the UK of the argument that consumers totally "get" budget store lookalikes, and are therefore not in any way confused by them.
The Influence at Work report
We were, therefore, very interested when we learned that the UK law firm Stobbs had commissioned a report on the issue of lookalikes from a behavioural science research company, Influence at Work (UK) Ltd. This report is titled The Psychology of Lookalikes. If trade marks are your game, it is worth a read.
A partner of the law firm explained the reasons for commissioning the report: "There are a lot of mistaken assumptions being made by lawyers as to how consumers behave and respond to lookalikes...the report is to summarise all of the latest research so that lawyers can revise their thinking."
The executive summary of the report indicates that despite evidence demonstrating that consumers are often subconsciously influenced by lookalikes, courts do not always recognise this phenomenon. Despite this, the common belief remains that consumers are not influenced by lookalikes
The report then seeks to dispel the myth that lookalikes do not lead to consumer confusion. The report offers a number of insights and points which are discussed below.
The (supermarket) environment is ripe for consumer confusion
The report describes a supermarket as a "cognitively overloaded environment that is ripe for the type of automatic, trigger-loaded human decision-making that lookalikes thrive on...when making fast, impulsive choices, consumers are not fully aware of their own decision-making processes."
In other words, shopping in a supermarket is hellish, you cannot think straight, and you are likely to end up making stupid decisions whilst there.
The brand name is NOT the most important feature influencing consumer decision-making
This is a biggie - the report states "the colour, shape and brand image of the packaging design are far more influential to the consumer, overriding the product name when reflexively choosing a product, particularly when in the stimulus-saturated, often stressful supermarket environment where decisions are made."
The report rejects the judicial approach, which is that the brand name is dominant. We are told that "science knows better", and that the most important brand-identifying features are in this order:
- colour – apparently the single most important element of a product's packaging and it determines a brand's "recall value".
- shape – the report says that "any copycat product wishing to persuade consumers that it is similar to the market leader needn't go through the trouble of appearing similar to the brand name on the package at all. All they need to do is copy the shape of the box or packet the name appears on. A consumer's brand will often do the rest of the work for them."
- design / brand image
- signals of taste and flavour
- brand name
Similar packaging is very significant
According to the report, research suggests that "even when consumers are not confused by lookalikes, the adoption of similar packaging has a significant impact on their perception of the underlying product's quality and value." In other words, consumers will assume that the lookalike product is as good as the original.
Consumers do not always make considered decisions
The report makes some interesting observations, for example:
- the average supermarket customer, although expected by the law to be reasonably well-informed and observant, is - in the "overly stimulating environment' of the store and in possession of 'limited cognitive bandwidth" - anything but calm and collected.
- studies show that where there are lookalikes in the proximity the chances of making a mistaken selection increase.
- product placement plays an important role – if a copycat is positioned alongside the original it does not have to replicate all the features of the original to create an advantage.
- shelf position is also important in the sense that if a copycat is positioned in the middle of the shelf it will sell more.
The report suggests what we may subconsciously know - supermarket environments rush people into making decisions. Colour, shape, design, brand image and signals of taste and flavour have more influence on our buying decisions than the brand name. Next time you are in a supermarket, be cognisant of lookalikes.
There is lots more in the report but we will leave it there. It will be interesting to see whether lawyers attempt to use this report in legal proceedings and, if so, what impact it has.
Reviewed by Gaelyn Scott, the Head of the ENSafrica IP department
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