Tackling lookalikes in the UK – the new landscape

There has never been a better time to address lookalike products in the UK. Recent landmark Court of Appeal and Supreme Court decisions have stood firmly behind brand owners, endorsing a variety of legal approaches.

What's the problem?

Lookalike products mimic the key cues of packaging and design of established brands, seeking to evoke those brands without overt counterfeiting. Whilst those that do it say they are merely 'benchmarking' off the earlier brand, brand owners just see the benefit of their brand investment being taken without compensation and with no brand-building investment being made by the copyist. With the lookalike often positioned as a cheaper but comparable alternative to their brand, it exploits the original brand’s reputation, can reduce its market share, create barriers to brand extensions, and erode customer loyalty. All this potentially causes long-term harm to the brand’s distinctiveness and premium positioning.

The practice is prevalent in the FMCG market, as well as luxury, fashion and cosmetic sectors. It is not just market-leading brands that are impacted: innovative new market entrants are often subject to imitation by lookalikes. 

Brand owners have always had the ability to rely on IP rights to challenge lookalike products in the UK, but enforcement has historically not been straightforward. This was particularly the case if the lookalike was similar enough to reap the benefits of its mimicry, but not quite close enough to confuse consumers. Brand owners are generally well placed to stop lookalikes in continental Europe by relying on unfair competition laws that do not exist in the UK. The tide appears to have changed in the UK and there are meaningful strategies that brand owners can adopt in the UK to take effective action against lookalikes.

What's the solution?

Legal claims

Originally it was the law of passing off, with its origins in nineteenth century common law, that brand owners turned to when seeing their goodwill being misappropriated. More recently lookalike cases stand a greater chance of success if based on trade mark law as it has evolved from EU Court of Justice case law. Less commonly, design laws and copyright can also be successfully deployed. 

Trade mark infringement

Most lookalike claims recently have been brought on the basis of free-riding and dilution-type claims relying on trade mark registrations depicting the shape and appearance of the packaging or the goods themselves (often referred to as the get-up). The claim is that the use takes unfair advantage of and/or is detrimental to the mark as registered (section 10(3) of the Trade Marks Act 1994 (TMA)). This requires proof that the get-up (as distinct from the brand name or logo) itself has a reputation in the UK, ie it is well-known in the relevant market. It tends to be fairly easy to prove that the get-up of a product category leader is reputed. It can be harder to do so for market-follower or new disruptor brands. The advantage of such claims is that there is no need to show that consumers are confused or deceived, which can be hard to prove, especially if there is no evidence of actual confusion (as is often the case). In addition, a trade mark can potentially last indefinitely such that claims can be made in relation to products and get-up that have been around for many decades. 

Key case: Thatchers v Aldi (2025). The Court of Appeal ruled that Aldi's Taurus cider cans and packs (below right) took unfair advantage of the trade mark registration for the 2D design of the Thatchers cider can (below left). The Court held that the latter had a reputation and unfair advantage resulted from a straightforward "transfer of image" from it to the Aldi product. This was a not a new concept but the finding that this was a straightforward case lends significant encouragement to similar cases where this 'transfer of image' occurs (see here for more analysis of this case).

Thatchers' trade mark registration	Aldi's infringing product

Often pleaded but historically less successful in this context have been trade mark claims based on a likelihood of confusion (section 10(2) of the TMA). Whilst the get-up still needs to have been registered as a trade mark, it does not need to have a reputation for this claim (although it can improve the case merits). The difficulty comes in proving confusion in circumstances where consumers have typically been treated as sufficiently savvy to know that lookalikes are not necessarily connected to the original product. This is particularly so for supermarket own-label lookalikes (even though some consumers believe the two products are made in the same factory - which is very rarely, if ever, true). The defence is that when they see them on the supermarket shelves, consumers know the difference and are merely being told, through the use of similar get-up, that the products are in the same category and could be considered substitutable. Recent case-law has again improved the position for brand owners by making it clear that confusion arising post-sale is relevant. Previously the position on that was unclear. This means a claim can focus on just a comparison of the get-ups and ignore the context of the sale, eg accompanying store signage, shelf labelling, outer box/pack designs, swing tags, outer sleeves and other point-of-sale materials.

Key case: Iconix v Dream Pairs (2025). The Supreme Court confirmed that post-sale confusion is sufficient for a finding of infringement, even where no confusion occurred at the point of sale (see more case analysis here). It provides another option to combat lookalikes, particularly for those who cannot yet show a reputation for their trade mark in the UK. This is particularly important for the fashion, wearables and FMCG sectors. 

Passing off

Where there are no relevant trade mark registrations, passing off claims might be the only basis of a claim. However, due to the need to prove reputation/goodwill and to show a likelihood that a substantial number of people would be deceived, they are harder cases to win. The rare cases where such claims have succeeded have relied on multiple instances of consumers being actually deceived (as in the famous case involving a lookalike Jif Lemon). That said, the Iconix case, albeit ruling on post-sale confusion in trade mark claims, is likely to make certain passing cases a little easier too. This might be more likely for fashion type lookalikes than FMCG food products.

It is not uncommon to plead trade mark infringement and passing off together. In addition, even if there is no registered trade mark for the get-up at the time when the alleged infringement is first found, that can be remedied with a new application being immediately filed. With unchallenged trade mark applications being granted within about four months, a registration can be obtained and then relied upon well before a passing off claim has advanced very far, ie it is never too late to improve the arsenal of IP rights that can be relied upon. As a result, there is usually little reason or merit nowadays in running through to a trial a claim that is based just on a passing off right.

Design right infringement

Lookalike cases can also be won based on infringement of registered or unregistered designs. The EU law-derived UK design rights protect the features of the appearance of the whole or part of a product, including packaging, surface decoration and logos (see more about such rights here). These claims are particularly relevant for unusual product designs, ie which leave a different overall impression in the mind than previous designs. However, these rights are not always an option. This is because a brand that get mimicked may only become a category leader after many years of sales and it may only get copied at that stage. Unless the get-up was registered as design at the time of, or within the one-year grace period after, first launch, the design will no longer be considered new and cannot be registered. In addition, two years later, the most useful form of unregistered design protection will also have expired. If the lookalike comes out after that (within 10 years of the brand's launch), then there might be one final type of UK unregistered design right that could assist. However, that right is only available where the designer or first seller is UK-based. As a result, that largely precludes all imported products from the benefit of this right. In any event, the scope of protection from this right is narrow (it does not cover surface decoration) and it rarely helpful in the context of lookalike enforcement.

Key case: M&S v Aldi (2024). The Court of Appeal confirmed that the design of Aldi's light-up festive gin-based liqueur (below right), infringed Marks & Spencer's registered designs for a similar bottle (below left), illustrating the potential for successful design claims against lookalikes (see further analysis of this case here).

One of M&S's registered designs	Aldi's infringing product

Copyright infringement

Copyright infringement may be available for direct copying of artistic works. This is useful for artistic elements in packaging design (eg label illustrations and artwork, fonts/typography, and the relative positioning of such elements within the whole packaging design). Sometimes it can protect even the product shapes themselves, provided the original brand can show originality and copying of a substantial part. However, the case law is very fluid and still evolving in relation to ability to rely on copyright in 3D product shapes with nuanced requirements for claimants to establish that their design falls into the ill-defined category of a "work of artistic craftsmanship". Copyright claims can be particularly helpful if the original brand has been around for many decades but, in those instances, it can be hard to prove ownership of the copyright, eg establishing who designed the original get-up, when, what their employment status then was and, if they were not an employee, whether the signed a written assignment of the copyright to the brand owner. That last act is often overlooked and, if even done many decades ago, obtaining a copy of that assignment can be challenging.

Key case: Charlotte Tilbury v Aldi (2019). Charlotte Tilbury successfully took legal action against Aldi for copyright infringement in the UK, arguing that Aldi's makeup products were a substantial copy of (ie too similar to) its own.

Practical strategies

Factor in the risk of lookalikes at the design stage

• Where possible, the risk of lookalikes should be factored in when designing the product and its packaging (or when those designs are updated). Taking action against lookalikes is always going to be easier if distinctive product names and design elements are adopted by the brand owner. The reverse is also true – the use of generic elements, which should arguably be free for all to use, should preferably be kept to a minimum (although this will not always mean a lookalike claim fails, as the use of lemons in the Thatchers get-up illustrates). 

• Introducing minor design features can also be important. For example, in the Thatchers case, the fact that the Aldi lookalike mimicked some faint (and entirely arbitrary) horizontal lines on the Thatchers product was relevant to the finding of infringement. 

• Ensure any freelancer designers of your products or packaging assign the copyright and any unregistered design rights to you (get them to sign this over before or shortly after they submit the designs to you).

Proactively register and manage IP rights

• Take a pro-active and rolling approach to the protection of product get-up. Seek advice at an early stage to check a new name, logo or get-up has not already been protected by someone else and devise a strategy for maximising your own protection within whatever budget you have. Consider all options, registered and unregistered. Allow budget to seek further protection as a particular product and its packaging builds in popularity, both within a year of launch and thereafter. Don't just consider it before, at or shortly after launch. Continue to think of all options to improve the protection even when the lookalikes start happening. 

• Don't limit your trade mark protection to just product names and logos. Consider protecting getup (with and without brand names and logo, ie not just as it appears on the shelf), shapes, colours and 'position marks' (which may be an option if you have a get-up theme to all your products). Speak with experts to ensure the right marks are registered for the right goods/services (see more about the options here). 

• For new get-up designs, consider design registrations. You can wait up to year to see if the get-up is a success and, once registered, the right can last 25 years. Even without registration, there could be a 3-year or even a 10-year option of unregistered design protection. 

• To keep open the option to assert copyright, keep clear records about who designed different elements of the get-up (including any alterations or updates). 

• If sharing designs with supermarkets well prior to launch (as many require), try to ensure any disclosure is made under conditions of strict confidentiality, eg marking design drawings as CONFIDENTIAL with copyright notices. Let them know that you have sought/obtained registered protection. 

Monitor and police the market

• Keep a real-world eye out for lookalikes, especially launched by supermarkets that stock your product and/or the well-known discounter supermarkets. Encourage staff and suppliers to report any instances of lookalike products to management, especially noting if the lookalike product was previously packaged very differently (this was a key factor in Lidl losing a free-riding claim by William Grant against its 'Hampstead' lookalike Hendrick's gin).

• Put in place an online watching service that monitors the internet (including platforms, search engines, market places and social media) for instances of infringement. These can watch not just for infringing uses of brand names but also logos and lookalike designs.

• Combine your watching service with an online enforcement programme that can manage both a high volume of day-to-day infringements dealt with by automated takedown notices with the ability to address more sophisticated and potentially harmful one-off copies with other legal options.

• Act quickly when you identify lookalikes of concern. Delay, especially if you allow multiple third parties to bring out lookalikes without reacting can make future enforcement very hard. M&S learned this to their cost when trying to stop Colin the Caterpillar lookalikes.

• Ask about our Online Brand Protection Tool to deliver all of this cost-effectively. 

Be strategic with actions

• Avoid reactive whack-a-mole and one-size-fits-all approaches and align strategic enforcement with budgetary constraints. 

• Use the full range of legal options including automated takedowns, advertising and regulatory complaints, company name actions, domain name complaints, cease and desist letters and, only if conflicts cannot be resolved amicably, then take court action only with carefully selected winning cases.

• Include your commercial team within any strategy to explore non-legal bargaining options if dealing with a supermarket which lists your products. If working with lookalike producers, consider negotiating robust contractual protection upfront (no-benchmarking, non-use provisions etc). 

Public messaging

• Employ a co-ordinated PR approach to educate consumers, highlight product authenticity, and deter imitators. Educating consumers that you do not create products for others and that the presence of particular brand features signify that the product is the original. This can all help, including with any legal claims.

• Work with your advertising team to help build reputation and goodwill in product get-up as well as in brand names and logos. Try to make something of the get-up within marketing materials.

The Iconix, Thatchers, M&S and Hendrick's cases in recent years reflect the courts’ increasing recognition of the nuanced ways that lookalikes can harm established brands - whether through unfair advantage, post-sale confusion or design infringement. By proactively securing, layering and updating relevant IP rights, monitoring the market, and promptly enforcing those rights (including well-planned PR strategies), brand owners can take effective action in the UK to combat lookalikes (or warn them off) and preserve their hard-earned goodwill.

Considering taking action? 

Members of our team have acted on some of the leading lookalikes cases in the courts and are experienced in enforcement against well-known lookalike producers – both via full scale court proceedings (where necessary) and in "behind-the-scenes" commercial negotiations away from the public eye.

We are well-placed to help you formulate a plan addressing key concerns around enforcement:

• Certainty. Recent landmark IP rulings have endorsed a variety of approaches based on IP rights to target lookalike products. These have now been tested and successful before the courts so should no longer be seen as a "gamble" or an uncertain option for brand owners. 

• Cost. Lookalike enforcement does not require multi-million pound litigation. There are a variety of lower-cost options including utilising the UK's streamlined IP court (the Intellectual Property Enterprise Court or IPEC) and procedural options including fast interim injunctions and summary judgment applications. We offer flexible pricing options including BrandsLITe and fixed cost litigation. For more on litigation, see here.

• Relationships. Lookalike enforcement does not need to be heavy-handed or public. Many lookalike disputes are resolved through "behind-the-scenes" commercial negotiations protecting existing relationships. We know many of the key players involved in lookalikes disputes and are experienced in negotiating sensible and pragmatic deals. Combined with our market-leading media and PR team, we can work on a holistic strategy to mitigate any PR risks.