Research has indicated a rise in the popularity of own-brand food as 2011 saw more supermarket brands launched than any other, and more recent data suggests that 22% of shoppers intend to buy more supermarket labels in 2013.
However, a recent study from consumer watchdog Which? suggests that these new products are relying on the success of well-known brands by copying their packaging.
Which? found more than 150 own-label products they thought were borrowing elements of their packaging from branded competitors, including items in Aldi, Asda, Boots, Lidl, Morrisons, Sainsbury’s, Superdrug and Tesco.
Peter Bennett, head of Roythornes’ food team, says this poses a real risk to food producers.
“The damage that can be done is one of mistaken identity,” he said. “It may affect sales as people confuse packaging, and there is some potential that an inferior product may taint the perception of its branded equivalent.
“There is, however, a much bigger threat facing producers of innovative new brands, and that’s delisting. We see retailers mimicking a successful idea, producing an own-brand equivalent and delisting the original to boost the sales of items that have higher markups. This practice will reduce competition and choice for consumers, and the long-term risk is price increases from producers who have no opposition.”
Tesco recently delisted ‘Saucy Fish Co’ products in the same week it launched own-brand ‘Fish in a Flash’. Both products feature a range of ready-to-cook fish fillets vacuum-packed with a sauce or dressing.
This poses an important question to food manufacturers: How do they protect their innovative products?
Peter Bennett, along with his team at Roythornes, has provided a guide to help food companies guard their creations.
When it comes to the practice of replacing and delisting, the Competition Commission is the most relevant organisation and form of defence.
The Enterprise Act 2002 enables the Office of Fair Trading to investigate and refer markets to the Competition Commission (CC) for an in-depth investigation if they have concerns. The CC is required by the Enterprise Act to decide if any feature or combination of features in a market prevents, restricts or distorts competition.
“An investigation enables the CC to undertake wide-reaching assessments of a market, and focus on the operation of a market as a whole rather than individuals within it,” said Bennett.
If the CC finds elements of a market are harming competition, it is obliged to remedy the problem by introducing solutions of its own or recommending action by others.
“It is important to understand the definition of design,” said Bennett. “It is the appearance of the product resulting from lines, contours, colours, shape, texture or materials of the product or ornamentation.”
The design must also be new and individual and needs to be registered in the UK within 12 months after it was first disclosed.
Registration gives exclusive rights in the design for up to 25 years. However, an unregistered design right does not protect the article – only the design itself, if it can be proven that it was copied intentionally.
Matthew Dent is a PR consultant.
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