What is the lookalike effect, and why don't we know if the Germans do things better?

Taking a project to the next stage
is never easy if you need to sleep
eighteen hours a day ...

This Kat is always happy to post news of interesting initiatives, but it's a sad truth that most of them come to nothing.  Reports, surveys, campaigns, many of which are not only interesting per se but meritorious in their methods and cogent in their conclusions, are prone to evaporate in the face of such obstacles as lack of political appeal, concerted lobbying to contrary effect and natural phenomena such as holidays, illnesses and career changes.  Very often the IPKat receives news only of the beginning of a project, and he is left to wonder whatever happened to it.  That's why he was so pleased to receive some follow-up information from Katfriend and IP enthusiast John Noble of the British Brands Group (BBG), shedding light on the subsequent history of one of the most absorbing and potentially valuable initiatives he has seen in recent times.

What's this all about?  In July of this year the BBG reviewed a major study, "The Impact of Lookalikes: similar packaging and fast-moving consumer goods", which the UK Intellectual Property Office (IPO) had commissioned back in 2010 in order to assess the harm caused to consumers and businesses which arose from competitors mimicking the packaging designs of familiar brands.  Since that review [noted by the IPKat here], the BBG has been working with the IPO to reach a common understanding of what the evidence now tells us about the effect of such packaging. That common understanding is now available on the BBG's website. 

This document, Issued by the IPO, identifies the following key findings:

1.       There is a lookalike effect. In essence;

*  Consumers are more likely to make mistaken purchases if the packaging of products is similar -- and there is strong evidence that consumers in substantial numbers have made mistakes;

*   Consumers' perceptions of the similarity of the packaging of goods are correlated with an increased perception of common origin and, to a material degree, there is also an increased perception of quality.

*  The lookalike effect increases consumers’ propensity to buy a product in similar packaging. 

2.       Better sales data might allow more reliable conclusions to be drawn on the impact of lookalikes on consumers and businesses, as current data has limitations.

3.       There may be limits to the UK's ability to legislate beyond the provisions of the Unfair Commercial Practices Directive in areas within its scope.


4.       The evidence exploring whether German unfair competition law provides a more advantageous regime for tackling lookalikes is inconclusive.

Says John Noble: the evidence in point 1 reinforces the fact that many copies may well be unlawful under UK IP law (including passing off) and consumer protection law as harmonised under the Unfair Commercial Practices Directive. The difficulty remains, however, in bringing a challenge under IP law, with all the problems of presenting evidence to the Court’s satisfaction, while the Consumer Protection Regulations continue to go unenforced. The case for Ministers and officials to remedy this situation, in the interests of consumers, let alone in the interests of companies that strive to build compelling reputations, is stronger than ever.

This Kat is tantalised by the bit about "the evidence exploring whether German unfair competition law provides a more advantageous regime for tackling lookalikes is inconclusive".  Do we need more evidence, he wonders, or better evidence? And isn't the real problem when comparing passing off with unfair competition the fact that both have a sort of chilling effect in that they may deter some businesses from look-alike mimicry, but we can only measure both systems by what happens when business do emulate packaging etc, not when they don't?