JKR

Supermarket own label offerings are increasingly being seen as “true brands” in their own right (with essential Waitrose leading the charge). Nevertheless, the passing off approach of imitating lead brand’s equities shows no signs of stopping. M&S were getting flak just last week for the structural similarities between their own vitamin water and the one spending a fortune promoting its distinctively branded bottle.

I hear that one – ahem – discount supermarket has a specific process to avoid litigation: copy the leader, but design in seven points of difference. So that in front of m’learned friend the colour, typography, shape, etc. can each be shown to differ from the source material (although the end result still looks close enough to trigger the desired associations in consumer’s minds). This will avoid the serious transgression of trademark infringement (though an obvious intention to design a pass-off can still be censured).

With this information, brand managers could, of course, follow a counter strategy where their own seven ingredients are all so distinctive in their own right that they baffle the copycats’ attempts to emulate them. I think this is the wrong answer. If you have seven elements that you believe constitute your equities, it’s about four too many. Because seven ingredients make a fairly complex soup, one which can be easily imitated not to the letter, but to the same broad recipe – voilà a successful passing off. If, on the other hand, you limit yourself to a simpler design (say Coke Classic’s flat red, script font and line), it’s much harder to produce a copycat, because the simplicity of the source material makes it more distinctive. Kellogg’s Corn Flakes is really hard to copy since they got the design’s mojo back and focussed on the rooster. Try ripping off our Guinness can design, which is little more than a colour and emblem.

Being legally protectable isn’t the be all and end all (appetite appeal, relevance cues etc. will all need to be considered), but if you can boil your design down to its essentials, not only will you stand apart from the wannabes, you will also be closer to a (pardon the term) “iconic” expression of your brand.