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Copycat packaging and protected designations of origin

Print publication

01/07/2014

The discount grocer, Aldi, has been in the news in the last month with two unrelated cases concerning different intellectual property rights.

Copycat packaging
The first concerned copycat packaging, an issue currently very much to the fore for retailers. The Saucy Fish Co, owned by Icelandic Seachill, has instituted trade mark and passing off proceedings against Aldi. In essence, the Saucy Fish Co is arguing that Aldi has infringed its intellectual property rights by packaging some of its own-brand fish and sauce products in packs which closely resemble the Saucy Fish Co’s own packaging.

It is reported that Aldi has agreed to an interim injunction requiring it to remove the packaging in question from its shelves, pending the court’s final determination of the case.

Whilst the issue of copycat packaging is a major concern for brand owners, the issue is particularly interesting in the context of discounters who may stock a look-alike product without also stocking the branded product. In this case, apparently Aldi did not stock the original Saucy Fish products. The brand owner may not therefore face the dilemma of whether or not to sue their own customer, presumably rendering the possibility of proceedings being instituted more likely as generally, it is rare for disputes about look alike products to reach the courts. If the case does proceed to trial an interesting question will be whether or not the public are actually confused – or do they realise exactly what Aldi is purported to be doing, namely stocking a product that looks like – but is not – the branded product.

Protected designation of origin
The second dispute involving Aldi was a German case. The Regional Court of Munich has ruled that Aldi’s champagne sorbet may no longer be called “Champagner Sorbet”. The action was brought by the Comité Interprofessionel du Vin de Champagne, which was apparently concerned about the damage being done to the reputation of its champagne. It also relied on the fact that “champagne” is a protected designation of origin which Aldi was exploiting (see our earlier article on Protected Food Name status).

Aldi’s product reportedly contains 12 per cent champagne. The remainder is made up of water and sugar.

The Court ruled that by calling the product “Champagner Sorbet” and labelling it with a photograph showing a champagne bottle, Aldi had exploited the reputation of champagne.

As an alternative epithet, the Court proposed “Schaumwein-Sorbet”, in English, “Sparkling Wine Sorbet”, which one would imagine might take a bit of selling to Aldi’s marketing team.