Supermarkets copying a successful original brand is not a new problem. Far from it. Research by Witch Magazine reveals that one in five shoppers had accidentally bought a supermarket version of their favourite brand while an investigation by the Consumer Group found that more than 150 supermarket own-label products had “borrowed” elements from the packaging of branded competitors, including McVitie’s Digestives, Kellogg’s Coco Pops, Radox Bath Gel and Jacob’s Cream Crackers. Increasingly supermarkets are imitating younger trendier very successful brands whose founders have often risked all to throw their energy and savings into building a brand from nothing.
The latest brand to feel the pain of copycat supermarket tactics is Hotel Chocolat who have accused Waitrose of copying the shape and get up of their distinctive curvy chocolate bars and selling them for £2 against a price tag of around £16 for the real thing.
Of course, the two bars are not the same thing. If you look carefully at the ingredients you will see that the Hotel Chocolat product has a far higher cocoa content and much less sugar, so at the very least they will taste different.
But they look very similar and that is the point.
The fact they look similar means that a consumer is seduced into thinking they are like for like when they are not. Often the consumer believes the brand has done a deal to supply the supermarket. Angus Thirlwell who owns Hotel Chocolat has contacted Waitrose asking them to do the right thing. He has let Waitrose know that the distinctive shape of the Hotel Chocolat bar is registered with the European design registry. This means that if it is recreated by someone else to give the same overall impression to an informed purchaser they will be infringing on his rights. Worse if the copying can be shown to have been intentional, Waitrose could face criminal prosecution. As is common also Mr Thirlwell has also lashed out on Twitter and the story has been picked up by BBC News and Sky. If there is a silver lining, it is all good publicity for Hotel Chocolat and also will surely be pressure on Waitrose to come to some commercial settlement with Thirlwell. If he is able to stop Waitrose it will be good news for other brands who fall victim to the supermarket copying machine.
UK law does not offer an easy legal remedy for a business in Hotel Chocolat’s position. Apart from relying on the design rights which have in this case been registered, the brand owner’s other weapon is ‘passing off’. Increasingly shoppers want authenticity and will be angered by large supermarkets who are seen to ride roughshod over the rights of pioneering brands. Conversely, supermarkets are increasingly turning to exciting new brands to entice customers and offer a range of products that give them an edge over other shops. Now is as good a time as any to start turning the tide on supermarket copycats.
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