CPUT implemented the Unfair Commercial Practices Directive (2005/29/EC) in the UK and prohibits (among other things) misleading commercial practices that can cause an average consumer to take a different transactional decision.
“Copycat packaging” refers to the practice of designing the packaging of a product (or its “trade dress” or “get up”) to give it the general “look and feel” of a competing well-known brand (typically the market leader).
Copycat packaging is distinct from counterfeiting as normally it does not involve copying trade marks.
The risk posed by copycat packaging is consumer confusion, and, consequently, the distortion of their commercial behaviour.
Consumer deception takes a number of forms and each is explained in more detail below:
a) Outright confusion: the consumer buys the copycat product mistaking it for the brand;
b) Deception over origin: the consumer recognises the copycat product is different but believes, due to the similar packaging, that it is made by the same manufacturer; and
c) Deception over equivalence or quality: again, the consumer recognises the copycat is different but believes, due to the similar packaging, that the quality is the same or closer to what they would have assumed if the packaging were different.
Good fun for the lawyers!