Copycat: Intellectual property rights in the supermarket industry

By Chelsea McVay

Have you ever wondered how German supermarket giant Aldi gets away with its ‘knock-off’ labels which has many similarities to well-known brands, both in product name and packaging?

From baby changing bags to Christmas Gin and a Colin the Caterpillar cake replica, Aldi has been the subject of many alleged copyright infringements over the years. Some very obvious imitations of well-known products are housed on its shelves, almost always at a cheaper cost to their competitors. My personal favourites are ‘Fruit Rounds’ (like ‘Fruit Loops’) and ‘Bran & Sultanas’ (like ‘Sultana Bran’). 

So how does Aldi manage to get away with this? Are the brands that inspire its products protected by intellectual property rights in some way?

There are multiple intellectual property protections in the food industry: trademarks, copyright, patents, industrial designs, and trade secrets, all of which are codified by a range of intellectual property legislation in Australia. Since copyright merely protects the form of expression of ideas, rather than the ideas, information or concepts expressed, patents can be put in place to protect ideas themselves. However, it seems that trademark and industrial design protection could be the most useful shields for companies trying to protect their brand and logo, as well as the presentation and design of their packaging.

Marks and Spencer in the UK sought an injunction against Aldi in 2021 for infringement of its protected designs on a Christmas gin bottle. These designs included the shape of the bottle, an integrated light feature, and edible golden flakes, all of which Aldi replicated in their own Christmas gin. 

However, Professor Michael Handler, an intellectual property law expert at the University of New South Wales, says that ‘the focus of trademark law is over the brand name and the logo.’ Therefore, if Aldi chooses a name for its product that is sufficiently different from the original, it is likely that they will be able to escape liability quite easily. This was the case in 2001, when Frito-Lay, who owns Twisties, sued Aldi over its very similar ‘Cheezy Twists.’  

In another example, Moroccanoil Israel Ltd, a beauty company selling hair care products, sued Aldi in 2015 for a trademark infringement, ‘misleading and deceptive conduct’ and ‘passing off’ over its Moroccan Argan Oil hair care products. 

In order to satisfy these claims in relation to brand name, packaging and design, a brand (in this case, Moroccanoil) must establish that the rival (Aldi) engaged in misrepresentation (that is, misrepresenting that its goods were associated with or are the original brand) and that the brand has suffered a loss because of it. 

Aldi was successful in the Full Court of the Federal Court of Australia, which found that it is unlikely that consumers would mistake Aldi’s products for those of Moroccanoil or associate the brands with one another. The courts have acknowledged that product similarities are part of Aldi’s marketing strategy and do not cause harm to the consumer.

On the other hand, in a recent case heard in the UK High Court in 2019, makeup company Charlotte Tilbury was successful in suing Aldi for copying their Filmstar Bronze and Glow makeup palette. Aldi called their palette Broadway Shape and Glow and used the design of Tilbury’s lid and powder. Tilbury successfully established that their ‘Starburst’ palette design was an original artistic work and was therefore subject to copyright.

Therefore, these lawsuits have highlighted the importance of obtaining trademarks and industrial design protection to safeguard intellectual property rights in the food industry.