Shoppers, meanwhile, can be comforted by familiar-looking products, and they are more likely to buy something if they know what to expect. Products that resemble established brands will likely sell better and in greater volume.
Goddard says the issue with intellectual property rights runs across the board. “There is this tension between IP rights, giving a limited commercial monopoly [to a few], versus the need to avoid stifling competition.”
He adds: “In the rare cases claims have come to court, discounters specifically have relied on the fact that ‘if you’re in Aldi, you’re in Lidl, you know the shape of the market, you know you’re not going to be finding the leading brands’.”
Cadman of Serjeants concurs: “Where Aldi and Lidl get away with it, if you like, they use very different trademark names on products. Everyone recognises what they’re meant to be, but they’ve avoided conflict because the consumer knows they’re not the real thing. It’s not Coca-Cola, it’s not Pepsi Max, it’s not a Mars bar, it’s the Aldi version of it.”
In 2019, beauty brand Charlotte Tilbury won a copyright battle against Aldi for selling a similar-looking makeup palette. The former’s high-end product sold for £49, whereas Aldi’s version cost just £6.99. The supermarket made £140,000 in sales before Charlotte Tilbury lodged its claim.
Five years earlier, Aldi was taken to court by Grimsby-based Saucy Fish Company arguing that the grocer’s designs were “confusingly similar” to theirs and infringed its trademark. It initially won an injunction against Aldi before reaching a confidential settlement out-of-court, similar to Marks & Spencer this week.
These sort of examples stretch beyond Aldi and Lidl though, with supermarkets also mimicking brands.
Three years ago, the chief executive of upmarket chocolatier Hotel Chocolat took umbrage after Waitrose began selling a range of bars that he said bore an uncanny resemblance to its own. The John Lewis-owned supermarket subsequently agreed to stop selling the curvy-shaped slabs after speaking to Hotel Chocolat.
Just last month, M&S found itself in hot water after being accused by a family-run chocolatier of copying its chocolate matchstick products. Following a weekend of social media fury, Marks offered to start stocking some Choc on Choc’s products.
And in 2017, Poundland and the Cadbury owner Mondelez ended up in court after claims that the value-chain’s Twin Peaks bar was a copy of Toblerone. The two companies reached a settlement and Poundland was allowed to sell the remaining Twin Peaks bars in exchange for opting for a “distinctive packaging”.
Unless rules become more draconian, these disputes will continue to crop up.
An Aldi spokesman said: “Our customers want a simple shopping experience when they visit our stores and therefore we package our own brand products in such a way that they are easily recognisable. People come to Aldi specifically to buy our exclusive Aldi brands for a fraction of the price they would pay elsewhere. We go to great lengths to ensure that we adhere to strict copyright guidelines.”