Copycat packaging under pressure following L’Oréal ruling

The ECJ decision is the first time that products have been ruled to have gained an unfair advantage without any risk over the products being confused, which could set an important precedent for copycat packaging.

Kirsten Gilbert, intellectual property solicitor at Marks & Clerk, told Packaging News the ruling opened the door for brand owners to take renewed action against look-alikes.

“If you have a registered trademark, you don’t need to demonstrate there’s been confusion or damage to your mark or impaired sales, but show a degree of similarity from which the look-alike derives an advantage,” she said.

Gilbert said the ruling could potentially cause problems for supermarkets’ own brands, although suggested major brands were perhaps more likely to take on smaller producers whose products were not sold through multiples.

British Brands Group director John Noble welcomed the ECJ ruling and said he hoped it would give brand owners confidence to deal with companies that were using their reputation.

“It shows that brands and trademarks are about more than just a product’s origin but about quality and investment in a range,” he said.

Noble echoed the view that brand owners might be reticent to sue retailers over own-label products that are often “packaged distinctively” but there were cases of smaller outlets benefiting from copycat brands.

“Taking on those outlets who are copying products would send out a strong message,” he said.

A study published last month revealed the extent to which firms were benefitting from copycat packaging.

L’Oréal’s case against Belgian perfume manufacturer Bellure will now return to the Court of Appeal for judgement.

The High Court had previously ruled that Bellure’s comparative list allowed the firm to take “unfair advantage” of L’Oréal products. The Advocate General at the Court of Appeal had asked the ECJ for clarification on a number of trademark infringement issues.

Full details of the ECJ judgement can be read by clicking here.

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