Last month, Euan Duncan joined colleagues from across the Interlaw network to discuss one of the most enduring challenges in brand protection – the rise of “lookalike” products.
These goods, designed to echo the appearance of leading brands, sit on shelves beside the original, at a lower price, and thrive on the recognition that others have worked hard to build. And for a long time, they have been very difficult to prevent.
But as our discussion revealed, the law is starting to bite back – and in many jurisdictions, it is now moving to protect the brand owner. So how are different countries drawing that fine line between inspiration and blatant imitation and unfair competition?
A legal turning point in the UK
In the UK, that line has just been redrawn with the recent Thatchers v Aldi decision. For background, Aldi had launched a lemon cider that bore more than a passing resemblance to Thatchers’ cloudy lemon cider – similar colours, layout and overall presentation. While the High Court initially sided with Aldi, the Court of Appeal disagreed, ruling that Aldi had deliberately evoked Thatchers’ design to encourage a “like Thatchers, but cheaper” perception. The judges were clear that confusion was not the issue; the problem was an intention to take unfair advantage of the Thatchers brand. By creating packaging that drew comparison, Aldi had taken unfair advantage of Thatchers’ brand and reputation. The Supreme Court later refused Aldi permission to appeal, confirming what many see as a major shift in the law.
For years, brand owners have struggled to challenge lookalikes because the burden rested on proving that consumers were confused. Now, the emphasis has moved towards protecting the reputation of the brand. It’s no longer enough for a copycat to argue that shoppers knew the difference – what matters is whether they deliberately sought to benefit from another’s hard-earned brand recognition. It’s a subtle change, but one that could have far-reaching consequences for retailers who rely on imitation to drive sales.
Global approaches to tackling imitation
During the Interlaw discussion, the differences in how this issue is approached around the world were illuminating.
For example, in Australia, courts take a particularly pragmatic view. When a company is accused of copying a design, it will be asked to produce a creative trail – drafts, emails, notes – to demonstrate how the product was developed. If it fails to do so, the court may infer that imitation has taken place. This early stage of scrutiny often encourages swift settlements and can prevent a lookalike product from gaining traction in the market.
Germany addresses the issue through its Act Against Unfair Competition, which prohibits misleading commercial practices and the unfair exploitation of a competitor’s reputation. Even when two products carry entirely different names, copying the overall “get-up” – the colour scheme, packaging shape or layout – can still breach the law if it creates a false impression of connection or endorsement. German courts have been particularly clear that a company cannot gain an unfair advantage by free-riding on the brand reputation or market position of another, even when there is no direct confusion.
France takes a distinct approach through the concept of “parasitisme” – or parasitic competition. Rooted in the broader civil law principle of good faith in commerce, it does not require confusion or even direct imitation. The key test is whether one party has unfairly benefited from another’s reputation or investment. French courts have found parasitism even when no products were identical, such as when one brand “rode on the coat-tails” of another’s image, style or advertising theme. It’s a uniquely expansive view of unfair competition, recognising that reputation can be exploited in more subtle ways than packaging alone.
Across all these jurisdictions, the same principle is taking hold: imitation is no longer seen as clever marketing, but as a form of commercial free-riding. Courts are increasingly willing to recognise that the “look and feel” of a product – not just its name or logo – deserves protection.
For global businesses, that means detail matters. The colour of a label, the tone of a font or the layout of a box can carry just as much brand value as a trade mark.
Fairness and the future of brand protection
What Euan took from the discussion was that, at its heart, this shift is about fairness. Competition law is not there to punish creativity or discourage healthy rivalry; it exists to protect originality. Businesses that invest in distinctive ideas and designs deserve to see that effort respected, not clearly repackaged by others.
In a marketplace where products can be copied and re-launched within weeks, it has never been more important to understand and evidence the origins of your brand. Protect what makes you distinctive – and make sure you can prove it. The balance of power is beginning to shift, and this time, the battle against lookalikes is moving back towards the brand owners.
