September 18, 2015

A fishy tale – and why it matters to you

fish supermarket packaging

A recent case involving Aldi, the budget supermarket chain and a well-known supplier of fresh fish products, The Saucy Fish Company, has revived the issue in relation to the copying of distinctive branding on packaging. An analysis of the law in this area also highlights the problems that can arise with simply relying on the law of passing off to protect a brand.

What should you do?

Having created a marketable brand and having taken the time and expense to develop unique packaging for the product that you are selling, it makes sense to go one step further and have that branding, packaging and design, properly protected from copycats.

What protection is available?

There are various forms of protection available, from the registration of trademarks dealing with packaging and branding generally, to registering specific designs. The registered design regime does offer some assistance where there is an attempt to copy which can be said to create the same “overall impression”. In general terms though, the first step should always be to consider registration of trade marks which can then be relied upon to challenge any attempt to copy your branding. Registered designs protect appearance of a product resulting from lines, colours or the shape.

The process of registering a trade mark is relatively straightforward. It offers significant protection without having to establish any substantial reputation in your brand before you are able to seek to prevent any copying through the law of passing off.

Is there statutory protection against someone copying my branding?

There have been calls to introduce statutory protection against copying of branding, but this still appears to be some way off. It is also unclear precisely what form this would take, or who would be responsible for policing the issue. Until this becomes clearer the message is simple: take steps to protect your own branding and don’t leave yourself exposed to unscrupulous copying.

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