Reflections from the Nest: Dupe Culture

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Thatchers vs Aldi: What does this mean for dupe culture?

There is understandably a lot of excitement around Thatchers’ win against Aldi in their dispute over the Taurus Cloudy Cider Lemon; a so-called lookalike product that was found to have imitated Thatchers’ Cloudy Lemon Cider, and afforded Aldi an unfair advantage.

Whether or not the result will resist a further appeal (which Aldi has already confirmed it is intent on pursuing) remains to be seen. In the meantime, we look at key take-home notes and wonder what it all means for dupe culture.  

[Dupe culture: the ever-growing popularity of seeking out lower-price duplicates (“dupes”) of premium products.]‍

Is this the end for dupe products?

A win against dupe products is too early to be claimed. In fact, there are legitimate concerns around decisions such as this and their effects on restricting competition. So perhaps we are just starting to see a stronger line being drawn between what is and is not OK. After all, dupe culture has seen immense success because there is consumer demand for products similar (or close) in quality to well-known products, without the branded price tag.

Rather than the end of dupe products, this may therefore signal the beginning of increased tension between brand-owners wishing to protect their rights, and third parties claiming they are fairly competing by targeting a different audience within the same market (those that don't want to pay for the higher end goods).

Indeed, in this case, the Court’s finding may well have been different had Aldi been able to show marketing efforts of its own, or sales of the copycat product that were not disproportionate to the rest of the range. Both or either of these things could have muddied the waters and made it trickier for the court to find that the product’s success was based on its calling to mind the Thatchers brand, and rule the way it did.

So, whilst we welcome the result and congratulate Thatchers on its win, our jury is still out on the overarching effect this will have on the fate of dupe products.  

Dupe culture: friend or foe? 

One thing is for certain: dupes are rapidly becoming normalised and it looks like they’re here to stay (at least for a while longer), as some consumers will now opt for the duped option even when they can afford the “original” product.  

Innovation, new products and wider consumer choice can only be a good thing, but as we see fair competition stray further into mimicry, the lines become blurred. Perhaps not surprisingly then, IP practitioners and brands alike may find dupe culture a double-edged sword. We have seen brands fall prey to duping when a look-alike of their product is released and we have also seen them tread too close to the line themselves (small business owners, we hear you too!).

This begs the question: dupe culture, friend or foe?

Benchmarking – just like the brand, only cheaper

The Thatchers decision provides insight into ‘benchmarking’ practices used by companies such as Aldi. In short, this is when a “benchmark” product is identified (usually a market leader) which then acts as the “quality” barometer for the product being developed – intended to offer the same or better quality than the benchmark product.

However, an important distinction was drawn between benchmarking the product and benchmarking the design of that product.

Whilst the former can be said to serve the public, and is perhaps desirable from a consumer’s perspective, the latter is arguably benefitting no one other than the “imitator” (assuming it translates into significant sales with minimal or no investment needed in promotion of the product).  

In this case, the court found intention to copy, which then resulted in an unfair advantage for Aldi (in the absence of any other evidence to explain the product’s success).  

Whether this is likely to shift dupe culture from a "just like the brand" to an "almost like the brand” approach will be interesting to watch – we will be following with great interest from our reflections nest.  

A win for all brand-holders?

Finally, the decision leaves some questions that are yet to be answered. Given that the (disproportionate) success of Aldi’s product played a factor in unfair advantage being established, does this mean brands can only fight lookalike products that sell well (or unprecedentedly well)?

And will this decision benefit all brand-holders? Or will the reputation threshold mean that smaller brands, with niche markets but successful products, will still struggle to fight lookalikes? In other words, is Thatchers v Aldi good law for brand-owners over a certain size only?

What can we learn?

Appeal or no appeal, there are several important lessons to be learnt from this decision that will remain relevant regardless.  

💡With regards IP protection: we love to fight the good fight for you… but having the right tools is half the battle.

• Reminder: IP attaches to all elements of branding and the key to victory does often lie in the details. Thatchers’ success is in no small part due to its decision to register its packaging as a trade mark, which accrued reputation in its own right. ‍
• How? By reviewing your rights and ensuring that the essential parts of your brand, and those most likely to be “duped”, are protected. Fast.

💡With regards competing fairly: imitation is a form of flattery… but it can also be a form of infringement.

• Reminder: trying to imitate or replicate the design of a product can amount to trade mark infringement. If a product is intended to offer an alternative to a high-end version, make sure this is conveyed through the proper channels, and not via copycat design.

• How? Through independent promotion (based on the product’s own merits) and fair trade mark use, such as in comparative advertising.

💡With regards the creative process: using other products as reference points in the design process may sound good on paper… but the paper may just end up on a judge’s desk.

• ‍Reminder: all facts (favourable or unfavourable) are subject to court disclosure, unless protected by privilege. If in doubt, bring in the legal team.
• How? By fostering a culture of innovation and inspiration above slavish copy and paste, and opening communication and collaboration between the marketing and legal departments.

If any of the above sparks your interest, let us know! We would love to help you navigate dupe culture and the implications of this very exciting decision.