Injunctions and the Copycats - Report on the Consumer Protection Regulations

BIS Report

The Department for Business, Innovation and Skills has published a report considering the possibility of enabling businesses to take civil action (in the form of an injunction) in relation to copycat packaging under the Consumer Protection from Unfair Trading Regulations 2008 ("CPUT").

CPUT prohibits misleading commercial practices that affect consumers' transactional decisions. This includes information about the nature, characteristics or origin of the products. CPUT also provides guidance for comparative advertising and at the heart of such guidance is a requirement of clarity as to where relevant and competing products, trade marks or trade names originate from or are manufactured.

Criminal penalties for a breach of CPUT can can be up to two years in prison and a potentially unlimited fine. Those responsible for policing the regulations include Trading Standards Services and the Competition and Markets Authority. However, at present, there is no provision in CPUT for business to take civil action against competitors themselves although they may institute criminal proceedings for criminal offences.

Findings

The report set out to review whether enforcement for brand owners was necessary for CPUT to achieve its objective and if so how this would be achieved.

The report found that whilst copycat packaging can affect consumers' transactional decisions this does not confirm detriment (to consumers), on the basis that some consumers actively decide to purchase copycat products. Additionally, despite a lack of evidential data, the report concluded that copycat packaging can both encourage and discourage brand innovation.

The report has attracted comment one important observation being that ultimately CPUT is in place to protect consumers not brand owners. Indeed, stakeholders who were invited to make submissions to the report were eager to point out that the strict commercial driver of CPUT should be consumers' interests and not those of brand owners.