The Department for Business, Innovation and Skills’ recently decided not to overhaul the rules that determine when a brand can launch copycatting action.
This came as quite a shock to some brands that were hoping to have more legal provisions made available to them.
But the decision should encourage brand owners to rely less on asking legal institutions to protect them and instead take moves to better protect their brands from imitation.
The government’s position simply reaffirms the argument that brands need to focus more on creating strong identities and packaging concepts that don’t leave them wide open to copycatting.
Brands make simple mistakes that increase their vulnerability to copycatting because they allow themselves to be led by what the consumer claims they want
I am not claiming to be a lawyer and am in no position to offer any advice on legalities. What I am however, is an expert in branding. I have spent many years working alongside eminent cognitive neuroscientists and psychologists to better understand how consumers react to branding messages, and ultimately connect with a brand on an emotional, non-rational, level.
As a result of this work I believe brands with distinctive, meaningful identities should be less concerned about copycat brands. Additionally, consistent application of a meaningful identity only provides further protection from copycats because it helps to embed a real emotive connection with consumers.
If a brand is strong enough to connect on an emotional level with the consumer, then no matter where range extensions may lead the brand, its equity will remain intact and protected from copycatting.
Cognitive Neuroscience and behavioural economics have consistently told us that consumers’ purchases are based on a non-rational decision making processes. For example, identities with symbolic meaning as opposed to identities anchored to products will prove more successful.
What’s notable about this is that the consumer doesn’t expressly request this. This is why traditional consumer research can often be misleading and brands shouldn’t always depend on consumers’ steering. Design that centres around consumer needs will result in a focus on generic, easy-to-replicate elements that won’t affect consumers’ purchasing choice.
Tropicana and Unilever
Instead, brands should create strong brand elements that, while the consumer is not cognitive of and therefore won’t be asking for, will affect their choice to buy.
There are too many examples to cite of old about brands making simple mistakes that increase their vulnerability to copycatting because the brand has allowed itself to be led by what the consumer claims they want.
Tropicana’s redesign of 2009 is perhaps one of the best examples of how allowing focus group research to shape an identity can have seriously detrimental effects to a brand’s commerciality.
Instead of strengthening the brand identity, the brand responded to what consumers said they wanted: "table worthy", "refreshing" and "modern", and created generic elements in the form of a glass of juice on a table setting using modern typeface.
However, these generic elements were invisible on the supermarket shelf and simply didn’t sell, meaning the new pack had to be withdrawn.
Brands need to sell meaningful brands, not simple products
The more unique and distinctive an identity, the more it enables the consumer to create emotional stories in their minds that are directly associated to the brand.
As the consumer isn’t aware of the decision-making process, this emotional connection is most powerful and entirely inimitable.
Avoiding predictable category cues will help to achieve a uniqueness that strongly resonates with consumers.
Another classic example of where a brand has left itself vulnerable to copycatting is Unilever’s 'I Can’t Believe It’s Not Butter'. It has been copied by absolutely everyone. The brand is structured around an advertisement end line, not a branding strategy that would have provided the foundations for a meaningful identity.
Unilever’s oversight was a lack of any visual brand equity beyond the name and the category cue-lead pack design. There is simply nothing there to defend against copycatting. The innovation was imitated, the initial success was shared by everyone, and there is very little future in what is now just a value proposition.
There are of course trademarks associated with the name, but that is not the issue. Competitors are allowed to copy products and sell them cheaply, that is the basis of our society.
With no ownable visual equity at a brand level, it is too easy (and legal) to copy products. Brand need to sell meaningful brands, not simple products.
Any brand that has a distinctive identity with the single-mindedness of creating high quality emotive connections is both better equipped to drive purchase, and well protected against imitation.
Copycats are legally only allowed to copy product detail, they cannot replicate a defined brand. If they do it's a trademark infringement. When consumers are open to confusion between a copycat and the real thing – it is ‘passing off’.
Brands need to invest in ownable, meaningful identities and use these identities consistently on packs. They must stop confusing packaging with advertising led communication strategies which are designed for adverts.
That’s the best provision a brand can have to protect itself from copycatting.