The report adopts the definition for a lookalike as “a product sold by a third party which looks similar to a manufacturer brand owner’s product and, by reason of that similarity, consumers perceive the lookalike to share a greater number of features with the manufacturer brand owner than would be expected simply because the products are in the same product category”. A lookalike is often an own brand product that is packaged or presented in a similar way as a branded product.

In an attempt to understand the ‘lookalike effect’ and the impact it can have on the sale of fast moving consumer goods, the UK Intellectual Property Office conducted consumer surveys and analyses of sales figures and stakeholder opinions.

The report concluded that almost as many consumers felt that they had benefitted from the lookalike effect as had been disadvantaged. However, the brand owners interviewed felt that lookalikes can have a negative effect in that sales may be lost to retailers selling own-brand products. The brand owners also generally considered that the law of passing-off provides insufficient protection as lookalikes do not typically generate confusion as to origin, a prerequisite to grounding a claim in passing-off.

The report considered that it is probable that the prevention of lookalikes is within the scope of the Unfair Commercial Practices Directive. It is therefore arguable that the right to an injunction under the Irish legislation, which implements the Unfair Commercial Practices Directive, could provide brand owners with the means to defend themselves from the negative effects of lookalike goods. The corresponding UK legislation does not provide a private right of action due to a fear that any such right might result in the opening of floodgates. However, the report suggests that this should not be a concern, referring to the fact that there has been very little use of the remedy in Ireland.