“Parasitic packaging”: The ongoing battle against ‘copycat’ products

‘Copycat’ products have attracted attention in recent years with high profile court actions, especially the infamous caterpillar cake wars, hitting the headlines. However, even with brand owners fighting back, the issue of copycats remains rife.

The British Brands Group (“BBG”) recently conducted a comprehensive review^[1] of copycat products and their “parasitic packaging”, uncovering the alarming number of products on the UK market which closely mimic well-known brands. These imitations not only threaten the originality and reputation of established brands but also mislead consumers.

Understanding Copycat Products

Our previous article, linked here, delves into the issue of copycat products. However, for those who are not familiar with the concept, copycat products are those which are intentionally designed to exploit the reputation of established brands. Copycat products imitate key aspects, such as product names, designs and/or packaging. The purpose of these copycat products is to emulate the established brand, to make customers associate one product with the other, thereby allowing the copycat an unfair commercial advantage.

The BBG's review is particularly striking, with 37 of its 49 pages filled with photographs of various copycat products available in the UK market. In a visually impactful move, the BBG has positioned these ‘imitation’ products alongside the well-known brands they closely resemble, highlighting the undeniable similarities. Such similarities include the particular colours, shape and/or imagery popular brands use on their packaging. Whilst the majority of these products come from the food and drink sector, the report also features various other consumer products such as familiar cleaning products and toiletries.

Where consumers are often influenced in making their purchasing decisions by the colour and shape of products, what can brands do to protect themselves?

IP Rights and Copycat Products

As the BBG notes, the current legal framework could be said to be erring on the side of the copiers, as it is often difficult to enforce due to copycats deliberately toeing a fine line.

Copyright infringement, for example, requires the whole or a substantial part of a work to be copied. However, while sailing close to the wind, copycats tend to opt only for a few similarities to form an association in the minds of customers – not necessarily overstepping this threshold.

Additionally, with trade mark infringement and passing off, UK courts have held that consumers tend to know that they are purchasing, an often cheaper, alternative to the original product. It is therefore difficult to argue confusion, to establish a claim of trade mark infringement (under section 10(2) of the Trade Marks Act 1994) or traditional passing off.

It is, however, reliance on an argument of trade mark infringement under section 10(3) of the Trade Marks Act 1994 which rightsholders have found most success with to date.

This was recently demonstrated in the Court of Appeal case of Thatchers v Aldi^[2]. The decision is discussed in more detail in our previous article, which can be found here. However, in short, Thatchers (a well-known cider producer) was successful, on appeal, against Aldi, who was selling a rival own-brand cloudy lemon cider. The claim succeeded in the Court of Appeal on the grounds of unfair advantage, under section 10(3) of the Trade Marks Act 1994, due to Aldi’s “transfer of image” with its copycat product. Aldi is however expected to appeal the judgment to the Supreme Court, so while it may provide brand owners with some comfort for now, the longer-term impact of the case remains unknown.

The Scottish Perspective

When considering how and where to take action, brand owners should also consider the tactical advantages of pursuing actions in the Court of Session (Scotland’s highest civil court).

The case of William Grant & Sons v Lidl^[3], concerning the shape of its well-known Hendrick’s gin bottle (discussed more here), serves as a useful reminder that Scotland offers a rights holder-friendly and cost-effective forum for the enforcement of IP rights against copycats. 

The main benefits of enforcing IP rights in Scotland include the fact that interim interdicts (the Scottish equivalents of preliminary injunctions) are regularly granted with no advance notice being given to the potential infringer, meaning no pre-action correspondence requires to be sent in advance. This means that the potential infringer will only become aware of the Court Order when it is served on them, at which point it is immediately effective, resulting in the prompt removal of all infringing products, pending any appeal. 

Following the Hendrick’s case, the Scottish courts have shown a willingness to grant these orders on a UK-wide basis, meaning that the Scottish courts can offer a like-for-like order as would be granted in the English courts, at a substantially lower cost than would be available to brand holders going down the English route. 

Further information on the benefits of enforcing IP Rights in Scotland, can be found at this link, but please do get in touch if you would like to hear more from our team about our work in this area.

^[1] Parasitic-packaging-2025-examples-1 (1).pdf

^[2] CA-2024-000463 Thatchers Cider Company Limited v Aldi Stores Limited [2025] EWCA Civ 5

^[3] William Grant & Sons Irish Brands Limited v (First) Lidl Stiftung & Co Kg; (Second) Lidl UK GmbH and (Third) Lidl Great Britain Limited [2021] CSOH 55