13 November, 2014

Generic Stuff - Food Packaging and Intellectual Property Law

Remembering back fondly to ones childhood often elicits images of Saturday mornings, watching cartoons and eating cereal poured from colorful cereal boxes. Yet a shadows of this memory is when your parents buy the generic brand, often simply grabbing something from a store shelf thinking it's the brand that their child loves, missing the folly in their ignorance and disappointing their young ones with less flavorful alternatives to their desired sugary morning treats. Thinking back, the disappointment probably was not as palpable as my memory serves me, but this illustrates a point of contention in intellectual property law; how close can you brand your foodstuffs as a generic brand when compared to more popular variants of a given food item? The goodwill and reputation, which many food manufacturers strive for for years, even decades, often seems easily exploited in the sphere of food packaging, yet, at least prima facie, their goodwill and make-up should potentially be well within the sphere of intellectual property law, and therefore quite protectable. The extent of this protection merits further discussion, especially in today's highly competitive world within the shopping jungle of grocery stores.

What prompted this writer's interest in this topic was an article published on the IPKat (originally brought up in an article on Yahoo! News), which discussed the seemingly blatant copying of popular brand items by Aldi in their store brand equivalents, especially in the remit of chips sold in a tubular container, and the mentioned use of similar packaging in cereals. Could Aldi's practices infringe on the brands' rights in the UK or abroad?

Some protection could be offered by copyright, should the packaging contain a work which can be categorized as protectable under the subject matter. Images on packaging, or even more stylistic or intricate designs, could potentially be considered an artistic work under the Copyright, Designs and Patents Act 1988 (and similar laws abroad), and even the writing used on the box (stories, challenges and other items on the back for example). The image has to have no artistic merit to it for it to be protected, but still has to be considered original. Although not the primary avenue for protecting packaging, it can still address the issue at a much shallower level. Arguably most goods will not infringe on copyright, even if they resemble the name brand goods quite a lot, as you would have to make a copy of the work (in simplistic terms), and a mere imitation might not be enough to argue copyright infringement, as a box for foodstuffs would be a long-shot to argue as a form of expression worth protecting.

Trademarks, under the Trademarks Act 1994 (and other similar provisions), are the more 'obvious' choice when it comes to protecting your brands, and certain foodstuffs are covered under the subject matter such as the name "Pringles" or "Froot Loops". Primarily trademarks only assist in the protection of names and logos (such as Captain Rik), and as such are much weaker when the logo, name or other trademark isn't directly copied or a similar variant used. Clearly, should Aldi (or any other business) deviate from those, they would arguably be in the clear.

The darker side of store brands: underpaid mascots
As for design rights, unregistered designs under the Copyright, Designs and Patents Act 1988  protect the shape or configuration of a good; i.e. how it looks like form wise, and not in terms of it's 'get-up'. This would be hard for Aldi (or others) to infringe unless a good has a very specific shape to it, such as a triangle box in stead of the typical box design. Under the registered designs regime through the Registered Designs Act 1949, a design can be registered should the appearance in part or as a whole have a specific look to it, including colors, shapes and even textures. The design has to have individual character, which can be simply said to entail something which is unique to that product, and isn't too generic, while also having to be novel. Arguably this is the hurdle where most foodstuff packaging stumbles in registered designs, as it would be nearly impossible to say that merely a certain color scheme or variation thereof would be novel and individual to that particular item. This in mind it is very possible for generic brands to imitate the look of a cereal box, even if the color scheme would be very identifiable for that particular brand.

In the US there is the concept of what is often referred to as 'trade dress', which is protected under 15 USC section 1125, making it quite usable in this instance, although not in a UK context. Under the Act a product can infringe upon the trade dress of another product under certain circumstances: "[If it] is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or... in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities". Arguably this would be very hard to prove, at least prima facie, but should a brand take the time and effort to compile sufficient evidence as to likely confusion and detriment on their end, trade dress could be a useful tool in the area of consumer goods. In the UK an avenue functioning much akin to the US provision above would be passing off (discussed more in depth on this very blog here); however the threshold of proof required is very hard to overcome, especially in an instance where the passing off isn't obvious and clear.

As one can see the world of consumer goods and foodstuffs is a treacherous and difficult area of law in which to wage your battles, and arguably most brand owners will not benefit in fighting this fight. Superior quality, goodwill and marketing will serve a better purpose than paying your lawyers to take on Aldi for its generic items; however as a legal professional it is a bit of a no-no to admit this. One can still appreciate the impact of generic goods and confusion related to them, with studies indicating that consumers are very likely to buy store brand products when they look like the name brand item, and a relatively high percentage of purchases having been mistakes due to the similarities. In the end this would be a matter which would have to be addressed by the legislature, but in a competitive world having choice and a cheaper option can still be good for business and the consumer - just not necessarily the brand owner.


  1. That is so funny, google must be psychic. I looked up how can generic cereals copy name brands after I returned from a shopping trip to, where else? Aldi's. And lo and behold, there is your article specifying aldi's when I made no mention of it in my search :) Well done google.

    Anyhow, I believe the laws on this SHOULD be changed, because it is VERY easy for someone who isn't paying close attention to simply grab a box of cereal from Aldi's thinking they're getting the name brand (Especially since aldi's also carries a few name brands mixed in with their own) while actually getting the generic. The boxes look nearly 100% identical, from the colors used, to props like the cereal bowl on the rice crispies box, even the fonts are extremely similar. They should not be allowed to do this.

    1. Aaron,

      The difficulty would be to draw a line between what should be protectable and what shouldn't be. Many cereal brands could have an avenue under passing off, but that is not a statutory right, but a common law one (and even so, they'd fight an uphill battle with regards to pure color schemes and other non-distinct features).

      Whether the law should change, and indeed will change, is uncertain, but I would argue a change isn't needed. Often generic cereals are inferior quality, and one can distinguish them, albeit not immediately if one buys them in a flash. I can't see this being a pressing issue, and without proper litigation (which also seems unlikely) I can't see the change in the horizon.

      I do thank you for your thoughts though!

  2. The author of this, Jani Ihalinen, is probably not responding to this, but he says, twice I think, that generic brands are clearly inferior. I don't know about that. I think many are just as good. I just used Aldi's Goulden's knock off. It was fine. I use fake Dove Soap. Good! I can't see any reason to not use some generic type, though I guess I have been burned, too.

    1. Hi Anonymous - some knock-off products are inferior, at least in my humble opinion, but that doesn't mean that they are all worse across the board. There are indeed ones that are equivalent, or even better, to the name brand ones, so it's very much a question of preference!


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