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Lookalike products imitate the distinctive appearance of an established product, making brand protection essential for businesses that want to prevent copycats from benefiting from the recognition, reputation and value they have built.
You may recall last year’s drama surrounding the viral Dubai chocolate bar — and the suspiciously familiar alternatives that quickly began appearing alongside it. Whether you spotted them on TikTok, in the news or in the snack aisle, the conversation around copycat packaging has been bubbling away.
But this isn’t just about sweet treats. Lookalike packaging has been eating into brand equity across industries for years, from food and drink to beauty, fashion and household products. And the potential impact is far more serious than a few similar-looking products on a shelf.
A lookalike product is a product designed to resemble the overall appearance of an established brand through elements such as its colours, shape, imagery, packaging or presentation, without necessarily copying its brand name.
Lookalikes aren’t quite the same as counterfeits.
A counterfeit is usually a direct and deliberate copy designed to convince consumers that it is the genuine product. It may reproduce the original brand name, logo and packaging almost exactly.
A lookalike tends to stop just short of that. It might use a different name but imitate the original product’s colours, shape, layout, imagery and overall shelf presence.
Because consumers may know they are buying a cheaper alternative, lookalikes are often brushed off as harmless fun or clever marketing. But they can still take advantage of brand equity that another business has spent years — and potentially millions — building.
Consumer confusion isn’t always the point. Influence is.
Research into the psychology of lookalikes shows just how powerful visual cues can be when we shop. Many purchasing decisions are made quickly and in busy, distracting environments such as supermarkets.
Consumers often rely on fast, automatic thinking, sometimes called “System 1” thinking. That means they tend to recognise products using cues in roughly this order:
• Colour
• Shape
• Brand imagery
• Signals of taste or flavour
• The product’s brand name
So, when a supermarket launches a private-label product with packaging that resembles an established brand, the different name might not be enough to prevent an association.
The lookalike may still be piggybacking on the original product’s visual identity, packaging design, marketing investment and product innovation. It can also encourage consumers to assume that the two products share similar qualities before they have even tried the alternative.
That has real consequences for brand protection, distinctiveness and consumer perception.
The impact isn’t limited to one lost sale at the checkout.
Research by Valuation Consulting modelled the potential impact of lookalikes on “Brand X”, a genuine but unnamed high-profile UK soft drink brand generating more than £60 million in annual sales.
Over a six-year period, the study estimated that lookalikes could contribute to:
• A £28 million drop in revenue
• £3.5 million in additional costs to combat their impact, including investment in packaging, innovation and marketing
• An 18% reduction in brand value
These figures are estimates based on Valuation Consulting’s model rather than reported losses suffered by a named company. However, they illustrate the potential scale of the commercial risk.
Lookalikes don’t just compete for sales. They can force brands to spend more on redesigning packaging, reinforcing distinctiveness, educating consumers and protecting the market position they have already paid to build.
UK brand owners may be able to challenge lookalike products through passing off, trade mark infringement, design rights and copyright — and several of these protections may apply to the same product at once.
Passing Off
Passing off protects the goodwill a business has built, even where the relevant branding or packaging has not been registered.
To bring a successful passing-off claim, a brand owner generally needs to establish three things:
• Goodwill: Consumers associate the product, packaging or other distinctive features with the brand owner.
• Misrepresentation: The lookalike’s presentation leads, or is likely to lead, consumers to believe there is a connection between the two businesses.
• Damage: That misrepresentation causes, or is likely to cause, commercial harm to the original brand.
The classic example is the “Jif Lemon” case, Reckitt & Colman Products Ltd v Borden Inc. The claimant successfully protected the distinctive lemon-shaped packaging used for its lemon juice because the defendant’s similar container amounted to passing off.
However, passing-off claims involving packaging can be difficult. A similar appearance alone may not be enough: the brand owner must show that the packaging identifies the source of the product and that the lookalike creates a misleading representation
Trademarks aren’t limited to names and logos. In the right circumstances, businesses can register distinctive packaging, shapes, colours or combinations of visual elements as trademarks.
Under section 10(3) of the Trade Marks Act 1994, a similar sign may infringe a registered trademark with a reputation if its use takes unfair advantage of — or damages — the distinctive character or reputation of that mark.
Crucially, the brand owner does not always have to prove that consumers believed the lookalike was the original product.
That was central to Thatchers Cider Company Limited v Aldi Stores Limited. The Court of Appeal found that Aldi’s cloudy lemon cider packaging took unfair advantage of Thatchers’ registered packaging trademark. The court concluded that the packaging called the Thatchers product to mind and allowed Aldi to benefit from Thatchers’ development and promotional work, despite consumers being unlikely to confuse the two products. Read the Court of Appeal judgment.
Design rights can protect the appearance of packaging, including elements such as its shape, contours, configuration and decoration.
A registered design can offer particularly valuable protection because infringement is assessed by comparing the overall impression created by the designs. The brand owner does not need to show that consumers were confused about who made the products.
The dispute between M&S and Aldi over their light-up festive gin bottles is a useful example. In Marks and Spencer plc v Aldi Stores Limited, the Court of Appeal upheld the finding that Aldi’s bottles infringed M&S’s registered designs.
Unregistered protection may also arise automatically, but its scope and duration depend on the right involved. UK unregistered design right generally protects aspects of shape and configuration rather than surface decoration. Supplementary unregistered design protection may cover appearance, including decoration, for three years following qualifying UK disclosure.
Because registered designs can provide broader and more straightforward protection, brands should consider registrations before launching important packaging rather than waiting until a copy appears.
Copyright may protect original artistic elements incorporated into packaging, including illustrations, graphic designs, patterns and certain arrangements of visual material.
It does not protect a general idea, style or product concept. The brand owner must identify an original copyright work and demonstrate that a substantial part of it has been copied.
Charlotte Tilbury successfully relied on copyright in Islestarr Holdings Ltd v Aldi Stores Ltd. The High Court found that artistic designs used on and within Charlotte Tilbury’s Filmstar Bronze & Glow makeup palette had been copied in Aldi’s lookalike product. The case shows how copyright can provide a useful route when distinctive artwork has been reproduced, even where the packaging as a whole has not been registered.
There’s a long-standing misconception that nothing can be done about lookalikes — that they are simply the price of building a successful brand.
That’s no longer a safe assumption. The right strategy will depend on the rights you own, the evidence available, the commercial threat and what you ultimately want to achieve.
1. Gather your evidence. Take screenshots and photographs, record when and where the lookalike appeared, keep examples of both products and prepare clear side-by-side packaging comparisons. Save any marketing materials that reference your product or suggest an intentional association.
2. Check your existing IP position. Review whether you have registered trade marks or designs covering the relevant packaging or “get-up”. You should also assess whether copyright, unregistered design rights or passing off could apply.
3. Decide your objective. Do you want the product removed from sale, changes made to its packaging, compensation for your losses or a strategy that shifts consumer perception back towards the original? Your commercial goal should shape the legal response.
4. Start with a proportionate approach. A carefully drafted letter before action can explain your rights, set out the evidence and request an appropriate remedy without moving immediately to court proceedings. The tone and demands should reflect the seriousness of the infringement and your wider commercial relationship with the other party.
5. Escalate where necessary. If the initial approach doesn’t resolve the issue, formal legal action may be required. Founders Law works with the IP specialists at Stobbs to help brands assess their options, strengthen their position and take action against copycats where appropriate.
The best defence starts long before a lookalike reaches the shelf. Registering valuable trade marks and designs early, keeping good records of your creative process and monitoring the market can make enforcement faster, stronger and more cost-effective.
• Lookalikes aren’t counterfeits, but they can still take unfair advantage of the recognition and brand equity created by another business.
• Consumer confusion is not required for every type of claim. In some cases, creating a link with an established brand and gaining an unfair commercial advantage may be enough.
• Decisions involving Thatchers, M&S and Charlotte Tilbury demonstrate that UK courts can support brand owners where the appropriate intellectual property rights exist.
• Passing off, trade mark infringement, design rights and copyright may all apply to lookalike products — often in combination.
• Acting early and registering important packaging, designs and brand assets proactively remains the strongest defence.
Need a hand protecting your brand? Get in touch with the Founders Law team to discuss your intellectual property and brand protection strategy.
