There was a time when intellectual property ("IP") was considered a grey and obscure area of the law, the domain of nerdy inventors, authors and the like. But our readers will know that IP issues now attract considerable public attention and media scrutiny (the British tabloids absolutely love them!). South Africans are certainly taking a real interest in IP matters (particularly disputes), with the recent 2023 case of Shoprite Checkers (Pty) Ltd v Pick 'N Pay Retailers (Pty) Ltd, (the Forage and Feast range of premium foodstuffs case) and more recently, a case involving political parties and their logos.
In this article, we will discuss two separate reports that deal with IP in the UK and conclude with a few words on a recent EUIPO initiative.
The Psychology of Lookalikes Report – copycat products and how they influence consumers
The report entitled The Psychology of Lookalikes Report – How consumers are influenced by packaging in a supermarket environment has been around for some time, and we wrote about it in an earlier article. It has recently resurfaced when Geoff Stewart of the UK IP law firm, Stobbs, posted on LinkedIn to say that the report had now made its way into Hansard, with Lord Clement Jones of the House of Lords being 'fully on board'.
Some points from the report
A reminder of some of the claims that are made:
- A copycat or lookalike product 'adopts the distinctive features of familiar branded products to dupe consumers into believing that it has the same qualities, reputation and/or origin as the brand when it does not.'
- Shoppers buy the copy 'based on these mistaken assumptions and can pay more than they would were the product distinctively packaged'.
- Lookalikes are 'extremely prevalent in the grocery market'.
- Lookalikes 'prevent shoppers making informed, accurate decisions'.
- Packaging 'mimicry misleads consumers in substantial numbers and distorts buying decisions.'
- The similar packaging exploits the fact that shoppers 'self-select products from the shelf'.
- Decision-making is fast - 'typically around two seconds per choice'.
- Product labels 'are not studied closely'.
- Colours and shapes are 'more powerful stimuli than words and prompt shoppers to buy a product that they did not intend to buy, to pay more and to believe that products have similarities'.
A gap in IP protection
Stewart argues that 'IP rights are insufficient' and that this is proved by the 'persistent prevalence of such copies on the market with two large retailers adopting it as a business strategy largely unchallenged.' There is, he argues, 'a gap in IP protection'.
The UKIPO Report - Public perceptions of IP in UK media
On 29 February 2024, the UK Intellectual Property Office (UKIPO) issued a report entitled Emerging public perceptions of intellectual property in UK media. This followed an earlier report entitled The impact of complicit social media influencers on male's consumption of counterfeit goods in the UK. The latest report was covered by the IPKat blog in a recent article.
The reports' findings
Amongst the findings:
- Social media is used as a backlash (weapon) against IP owners. As an example, the authors argue that Marks and Spencer decided to settle the much- publicised Colin the Caterpillar trade mark dispute that it had with Aldi as a direct result of Aldi's social media campaign.
- A David v Goliath narrative comes up increasingly often in UK IP disputes. The IPKat report says this:
'According to this kind of narrative, individual creators or inventors are perceived by the public as the weaker parties, thus benefiting of the favour of the public as the IP rights holder is perceived as giant Goliath regardless of the validity of the enforced rights.'
Such a backlash may occur even if the two parties are well-matched as, for example two successful retailers.
What this means for IP owners
The IPKat article makes some interesting claims. It claims that the power of social media is 'constantly changing' and it suggests that this has a significant impact on IP rights. As a result, IP owners can no longer simply rely on the power of their IP rights. What IP owners now also need to consider is the perception of the public. They also want to avoid any backlash. Such a backlash could occur in the IP registration phase or later in the enforcement phase.
Fight Fake Fashion
We'll end with a brief note on a EUIPO initiative called 'Fight Fake' fashion. The fashion industry is particularly hard hit by fakes and young people are perceived as the most likely to buy fakes. The initiative involves a fashion show that draws attention to the problems caused by fakes, both in terms of lost revenue and lost jobs across the EU.
The Fight Fake fashion show took place at the Sofia Fashion week recently, with the Bulgarian Patent Office being involved. A small but hopefully meaningful step in dealing with the problem of fakes.
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