The British Brands Group (BBG), which represents the regulatory and commercial interests of the UK’s brand owners, has called on the Government to re-think its current proposal to restrict the power to take action against copycat packaging to trading standards officers (TSOs) and the OFT, thus excluding brand owners from pursuing their own legal redress, when a new EU Directive governing “unfair trading” comes into force on April 6 next year.
Speaking at a parliamentary roundtable on July 25 set up to examine the EU’s forthcoming Unfair Commercial Practices (UCP) Directive, BBG director John Noble said its introduction offered the UK “its best chance in a decade to really clamp down on a perennial problem for brand owners”.
However at the event, hosted by Lembit Öpik MP, Liberal Democrat shadow secretary for Business, Enterprise and Regulatory Reform, Noble agreed with representatives from, among others, London design company PI Global, Help the Aged, intellectual property law firm Maclay Murray & Spens, and the Alliance against IP theft (a UK trade association coalition set up to safeguard intellectual property rights) that, unless brand owners get the opportunity to take legal action against packaging copycatters themselves, “a major opportunity will be missed”.
Noble explained: “The UCP Directive has been out for consultation in the UK for several months, with the Government expected to consider submissions later in the year following the consultation’s end on August 21. It will then determine how best to integrate the provisions into UK law.
“While the Directive should better protect brand owners against more obvious instances of packaging copycatting, the British Brands Group strongly urges the Department for Business, Enterprise and Regulatory Reform (formerly the DTI) to re-think its current proposal that enforcement and legal action be restricted to trading standards officers and the OFT.”
Noble and Öpik, who said he had frequently himself been “frustrated and annoyed” by “instances of blatant packaging plagiarism” during a spell earlier in his career as an assistant brand manager at Procter & Gamble, added that, if it does prevent UK brand owners from seeking their own legal redress, the DBERR (the relevant “home authority”) would be “out of step with the rest of Europe”. Many Governments had already indicated they would allow big FMCG companies to pursue their own claims, for instance injunctions demanding copycat packs be removed from sale.
Öpik promised to “make it my business to bring this very important issue to the attention of those with influence in Government to seek to ensure brand owners receive the protection that should be their fundamental right”.
It was also suggested brand owners seeking to develop new packaging in future be legally obliged to show they had taken all due care to avoid replicating existing packaging.
The BBG cited recent research suggesting that some 20% of UK consumers believe they have picked up a look-alike pack or product, mistaking it for their usual “big brand” purchase, while between 30 and 50% have bought goods in error because they believed the product “had an association” with the competitor “big brand” item they normally choose.
Öpik also said there might be a good case for a new Packaging Standards Authority to lay down strict anti-copycatting guidelines, resolve disputes and take action “where and whenever necessary”, while he believed trading standards officers also needed greater financial resources to pursue cases.
Although clearly unhappy at the UK status quo, the roundtable participants generally agreed brand owners should be better protected against copycat packaging under the new Directive than existing legislation; it expressly prohibits “misleading actions” and lists copycatting among a raft of trading practices “that in all circumstances are to be considered unfair”.
For more information on the UCP directive, visit: www.dti.gov.uk/consumers/buying-selling/ucp/index.html
British Brands Group director John Noble