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Copycat packaging: plain plagiarism or valid competition?

Silas Amos is a creative director of packaging design and branding agency jones knowles ritchie and editor of branding blog Design Gazette.

As consumer group Which? publishes its list of the worst offending supermarket own-brand products brazenly misleading the public by imitating established brands, Silas Amos, creative director at jkr and editor of Design Gazette, takes a look at the phenomenon of copycat packaging, asking whether brand mimics are outrageously exploiting other organisations’ intellectual property or whether it is valid competition and all in the interest of the consumer.

Copycatting – it’s nothing new, and is typically aimed at the most distinctive and popular brands. There is a common belief that Hitler put his antisemitism to one side to adopt Charlie Chaplin’s moustache, believing it would help make him as popular as the globally adored comic. While this might be a myth, it’s worth considering that Chaplin himself once famously came third in a Chaplin lookalike contest. Even the most idiosyncratic of identities can be victim to imitation.

When Apple was accused of copying its graphic user interface from Xerox, Steve Jobs quoted Picasso, saying: “Good artists copy; great artists steal.” He continued “we have always been shameless about stealing great ideas”. I wonder if he would appreciate the irony of his philosophy being turned against him, as seen in Apple’s court case with Samsung? Imitation might be sincerest form of flattery, but that is cold comfort when it starts eating into your profits and value.

Business interests aside, all mum (please forgive my sexist assumption) wants to do is shop quickly happily and confidently around the supermarket aisle. According to a 2009 report from the British Brands Group 38 per cent of shoppers admit to having been confused or misled by the packaging of grocery products that look similar. And 33 per cent admit to having accidentally bought the wrong product because of its similar packaging. There is a strong correlation between similar packaging and a belief that the product comes from the same manufacturer as the original brand. Which is far from always the case.

Do brand mimics (or to be more pointed, ‘creative plagiarists’) represent outrageous exploitation of another organisation’s IP or is it valid competition and in the interest of the consumer? In my view, taking inspiration from others is legitimate competition, but blatant imitation can kill a good brand. And it’s brands that do the real innovation in life, not retailer brands. So if brands are not incentivised to innovate because they are just going to get copied, we all lose out in the long term. One could go further and say copycatting adds to a general (and wrongheaded) cultural perception that everything is for free – your music, your films, and your plagiarised college essay. In this context what’s the issue with a liberal approach to intellectual property at a corporate level?

The focus of this article is around packaging that gets copied, but of course the context and culture of copycat design goes far wider. In China it’s happening at XXXL scale. The whole look and feel of Apple and Ikea stores is being hijacked by imposters, from products and signage to the staff uniforms. A new Zaha Hadid design for a Chinese shopping complex has been pirated by a Chongqing developers before it is even complete. The developer has been quoted as saying it ‘“never meant to copy, only want to surpass.” Adding insult to injury, Hadid is having to race to finish her building first. One can almost admire the cheek of it.

In packaging design it’s a constant challenge to stay one jump ahead of the imitators. I have been told of one retailer who has a ‘seven degrees of separation’ methodology – so ensuring that the colour, typography, shape, etc. differs from the source material. The key is that the end result still looks close enough to trigger the desired associations in consumer’s minds. It’s all perfectly legal, if a little underhand.

So copycat branding is a fact of life. But which design approach can help insulate your pack from it? In truth if someone wants to borrow your clothes they will – even Coke and Procter & Gamble find themselves sincerely flattered on occasion. The more idiosyncratic and distinctive one makes a pack, the less logical and sensible it is; the better chance you have of putting space between you and the imitation, sorry, competition.

Simplicity in design is more protectable than complexity. Going back to our friend the retailer looking for ‘seven different but similar’ design codes, if your pack actually has seven things to be copied, the chances are you lack one crisp and protectable equity. You are a bit fuzzy, whereas the Kellogg’s corn flakes box or the Guinness can (one of jkr’s designs) are harder to imitate because they have boiled things down to their most distinctive elements.

Non-literal ‘learned symbols’ are the most protectable brand devices. The fancy name for them is autograms. The ‘no entry sign’, a white letterbox on a red circle is a good example. If it were a brand it would be highly protectable, unlike a more literal representation (say, a car with a cross through it). Consider the Marlboro chevron, the Coke ribbon, the Bass triangle – all fine protectable autograms, and all imbued with meaning by the brands over time.

One understands the short-term benefits to retailers in copycat branding. But a slightly smarter approach might be to use category language in a more original way. Consider Boots No7. Yes, it uses colours, shapes finishes and typography that are all familiar language. But it serves them up in an elegant and attractive way that gives the brand real appeal and charisma – which is better than just pinching Rimmel’s look and feel. And in building a brand rather than borrowing one, No7 illustrates a more effective long-term investment of design than having an eye on the main chance.

Obvious copies might have all the lustre of a bad cover version, but the fact that so many shoppers are happy to put them in the basket also tells us that people are not as nearly loyal to brands as marketers would like to imagine. Indeed one recent survey suggested that only 4 per cent of shoppers would be willing to stick with a brand if competitors offered them ‘better value for money’. We flatter ourselves to believe design and marketing create a ‘relationship’ with people. What we forget is that people are susceptible. They are always going to have their head turned by something that looks almost as good, but carries a cheaper price tag. If nothing else, copycats do all those involved in branding the service of reminding us that we are never as special as we think we are.

Beyond what design can do to protect brands from imitation (which is a slightly King Canute role) what else might be done? How about new legislation to provide brand owners legal protection from direct plagiarism of their expensively built brand equity? The EU unfair competition law provides recourse but the UK does not implement it. The Intellectual Property Office is supposed to be reporting on its investigation into this topic, but the publication date has been delayed. Perhaps in time the playing field might feel more level.

As we began with a quote, let us end with a couple that might show the way: “In order to be irreplaceable, one must always be different,” noted Coco Chanel. More pithily Oscar Wilde observed: “Be yourself. Everybody else is taken.”

At the end of the day, building a brand is about being true to who and what you are and expressing it through design. It’s a priceless thing, but as a design principle it actually comes for free. And it’s the one thing a copycat can’t buy into for any money.

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