Why has the old passing off debate reignited?

by donnatrist

There’s a lot of crime going on in the supermarket aisles but it’s not shop-lifting says Which magazine. Yes the old ‘passing-off’ debate about the extent to which supermarkets copy brands reared its head again last week after lying dormant for more than a decade.

As we work for both brands and retailers it’s a debate we are especially interested in and one which we witness from both sides.

The survey by Which accused supermarkets of bamboozling consumers into buying their own-label products by copying the packaging of better known branded equivalents. The investigation looked at 150 own-label products and found that a fifth of those questioned had accidentally bought a supermarket copy of a brand, at least once. 18% had deliberately bought an own-label product because it resembled the branded equivalent. 60% of these shoppers did so because it was cheaper, 59% wanted to see if it was as good.

The question of passing off or “intellectual property theft” as brand owners called it, first came to prominence in the early nineties when retailers realised they could grow sales and margins of own-label products if they improved the quality and made them look more like established brands.

The problem was how do you do that? On the one hand every category has its conventions. Disobey them and you aren’t in the category. One the other hand if you use too many of the conventions, -especially colour cues, packaging shape and type face, its easy to imply a connection with the brand that doesn’t exist or trick consumers into mistaking your product for the branded leader. No wonder the brand owners called it “parasite branding”.

Certainly some of the examples of own label shown in the Which report were so close to their branded rivals they were almost funny. But you have to wonder why the issue has returned now?

It seems that the main driver is likely to be economic downturn. With consumer confidence down and many real incomes falling, own-label is taking a larger and larger share of supermarket turn over. The temptation for retailers is to sail as close to the brand leader as possible because, according to the British Brands Group, a lookalike pack can boost sales by fifty per cent or more.

We know that retailers are especially interested in own-label at the moment because in the last couple of years we have received briefs from two retail giants who both wanted help transforming their own-label into own brand.

So are they deliberately copying established brands? We know for a fact that our clients aren’t. One the other hand we also know that at least one very major retailer (not our client) actually told its design agency to “get as close as you can legally.”

That’s not only dishonest, it’s a mistake. The reason being that it suggests a lack of confidence and undermines your ability to build your own brand.

The best way for brands to deal with this problem is to create strong unique and distinctive visual properties. Of course anything can be copied. But if your visual language is truly distinctive it is harder for plagiarists to argue they are merely using category conventions.

For retailers the challenge is to marry these conventions with your own distinctive brand personality and design language. The result is almost certain to be uniquely and distinctively yours but recognisable within the category.

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