Re-evaluating Brand Protection after Thatchers v Aldi and M&S v Aldi
Abstract
This essay argues that the recent decisions of the Court of Appeal in Thatchers v Aldi[1] and Marks and Spencer v Aldi[2] mark a significant, though doctrinally awkward, shift in the English law of lookalikes. While English law continues to disclaim any general tort of unfair competition,[3] the expansive deployment of section 10(3) of the Trade Marks Act 1994 and of registered design rights has produced, in substance, a near-functional equivalent. The essay contends that this development is normatively defensible – lookalikes are a more subtle commercial harm than passing off can capture – but doctrinally unstable, because brand-protection has been smuggled in through reputation-based infringement rather than addressed openly. The essay concludes that the conceptually honest response is legislative: Parliament should introduce a narrow statutory wrong of unfair commercial imitation, defined by intentional benchmarking and consumer-facing detriment, rather than allow trade mark law to continue absorbing functions for which it was not designed.
I. Introduction
Lookalike products are defined as those that adopt the colours, shapes, or visual idiom of a recognised brand, whilst bearing a different name. These products sit at the intersection of consumer welfare, intellectual property and competition policy. The familiar paradigm is the discount supermarket own-brand: a cider with a yellow-and-green can placed adjacent to Thatchers Cloudy Lemon; a snow-globe gin liqueur sold beside the M&S original; a caterpillar cake bearing more than a de minimis resemblance to Colin. The commercial appeal here is obvious, viz. by visually borrowing the cues that signal a known product to a hurried shopper, the lookalike harvests a portion of the brand owner’s investment in advertising, packaging design and quality signalling at a fraction of the cost.
English law, however, has historically resisted treating this practice as wrongful. The orthodox position, derived from the law of passing off, is that the law does not protect against mere commercial imitation; it protects only against misrepresentation as to trade origin.[4] Trade mark law, in turn, conventionally requires either identical use on identical goods or a likelihood of confusion. Both doctrinal hooks tend to fail in the typical lookalike scenario, where the offending product bears a clearly different brand name and is sold in a different retail environment. The historical result has been a regulatory gap that academic writers – most prominently Jennifer Davis – have characterised as a misalignment between commercial reality and legal form.[5]
The Court of Appeal’s decisions in Thatchers v Aldi and M&S v Aldi suggest a shift in position. Both cases produced victories for the brand owner using statutory rights other than via passing off: section 10(3) of the Trade Marks Act 1994 in Thatchers and the Registered Designs Act 1949 in M&S. Lord Justice Arnold, who delivered the leading judgment in both, acknowledged the irony in Thatchers that the conduct in question would, in a continental civil law system, be straightforwardly actionable as unfair competition.[6] The English route to a similar outcome is more oblique, and this obliqueness, this essay argues, represents the core of the difficulty.
The essay proceeds in four substantive parts. Part II revisits the traditional position, examining why passing off has proved a structurally inadequate tool against lookalikes. Part III analyses the rise of “reputation-based” infringement under s 10(3) TMA 1994, focusing on Thatchers and its relationship to the European jurisprudence in L’Oréal v Bellure. Part IV considers the role of registered design rights, the closest functional analogue to a true unfair competition action, by reference to M&S v Aldi. Part V develops the central normative argument: that English law has effected, through judicial gradualism, a partial migration toward a misappropriation standard, and that this is preferable to the previous formal position but inferior to a candidly legislated alternative.
II. The Inadequacy of Passing Off
Passing off, in its modern formulation, requires three elements: goodwill or reputation attaching to the claimant’s goods; a misrepresentation by the defendant likely to deceive the public; and consequential damage.[7] Lord Diplock’s slightly broader formulation in Warnink v Townend adds the requirement that the misrepresentation be made in the course of trade to prospective customers.[8] The structural difficulty for a brand owner facing a lookalike is locating the misrepresentation.
Aldi shoppers do not generally believe that a Taurus-branded cider was manufactured by Thatchers. They know they are in Aldi; they know Aldi sells its own-brand range; the brand name on the can says “Taurus”, not “Thatchers”. This intuition is borne out in the case law. At first instance in Thatchers, HHJ Melissa Clarke dismissed the passing off claim because there was no evidence of consumer deception as to commercial origin, and that finding was not appealed.[9] The same problem disposed of much of M&S’s case in the Cuthbert dispute: shoppers in Aldi expect to find lookalike own-brand goods and reach for them in full knowledge of that fact.
Two doctrinal escape routes have been canvassed. The first, post-sale confusion, asks whether downstream observers – guests served the cake, friends offered the cider – might be misled.[10] This is doctrinally underdeveloped in English law; Iconix v Dream Pairs confirms that confusion remains the touchstone but offers no real expansion of when post-sale impressions ground a passing off claim. The second is “extended” passing off based on quality association: the suggestion that consumers, knowing the goods are different, may yet assume them to be of equivalent quality, and that the brand owner is damaged when expectations are disappointed. This too has struggled to gain doctrinal traction. There is, on the evidence in Thatchers, no real loss of sales (consumers buying Aldi did not lose Thatchers as an option), and the courts have been reluctant to recognise reputational dilution as actionable damage absent a recognised head.[11]
The settlement in M&S v Aldi (Colin v Cuthbert) is instructive. Although M&S pleaded both trade mark infringement and passing off, the case never reached a contested judgment, partly because Aldi’s vigorous public-relations response (the celebrated #FreeCuthbert campaign) itself dissipated any residual consumer confusion.[12] Where the alleged passing off can be neutralised by the defendant’s own marketing, the legal cause of action is doing limited work. Passing off, in short, is a tort directed at deception. Lookalikes are not, in the typical case, deceptive in the traditional sense; they are evocative. The mismatch between the wrong the law recognises and the harm the brand owner perceives is what generates the underlying tension.
III. Section 10(3) TMA 1994 and the Rise of Reputation-Based Infringement
A. The doctrinal architecture
Section 10 of the Trade Marks Act 1994 contains three distinct heads of infringement. Sub-section (1) covers identical signs on identical goods; sub-section (2)(b) covers similar signs giving rise to a likelihood of confusion;[13] sub-section (3), which derives from the EU Trade Marks Directive, allows a registered mark with a “reputation” to be infringed where the use of a similar sign, without due cause, takes “unfair advantage of, or is detrimental to, the distinctive character or repute of the trade mark”. This third head is the critical battleground for lookalikes.
What is distinctive about s 10(3) is that confusion is not required. The provision protects the mark’s communicative and symbolic function, not merely its origin function. The CJEU in Intel and L’Oréal v Bellure established that the necessary condition is that the average consumer makes a mental “link” between sign and mark, even without confusion as to source.[14] Where such a link is established, the proprietor must then show one of three harms: detriment to distinctive character (dilution); detriment to repute (tarnishment); or, most controversially, that the defendant has taken “unfair advantage” of the mark’s repute.
The third limb is the awkward one. It captures conduct that is, prima facie, neither deceptive nor damaging in any material sense. The CJEU in L’Oréal described unfair advantage as the situation where a third party, “by riding on the coat-tails” of the mark, exploits its image and reputation without compensation.[15] The case famously concerned imitation perfume comparison lists. Sir Robin Jacob, sitting in the Court of Appeal, applied the ruling under audible protest, observing that this represented a substantial expansion of trade mark protection beyond the protection of source-identification.
B. Thatchers and the operationalisation of “unfair advantage”
The first instance judgment in Thatchers offered a relatively narrow reading of s 10(3). HHJ Clarke held that Aldi had deliberately positioned its Taurus product at a “safe distance” from Thatchers; that any similarities were attributable to common descriptive cues for lemon cider (yellow colour palette, lemon imagery); and that there was, accordingly, no objective unfair advantage.[16] This reasoning resembles a kind of de minimis approach: visual reminiscence, without more, is insufficient.
The Court of Appeal disagreed, in three steps. First, Arnold LJ held that the similarity assessment had to take into account the “notional and fair use” of the registered mark, including how it appeared on actual cans, not merely the two-dimensional registration in isolation.[17] This is doctrinally orthodox but has important implications: it widens the basis for comparison and brings get-up evidence to bear on what is formally a registered-mark dispute. Second, the court placed significant weight on Aldi’s documented design process, in particular evidence that the agency brief had described the project as developing a “hybrid of Taurus and Thatchers” and that the product had been benchmarked exclusively against Thatchers. Third – and most striking – the court inferred that the only reason Aldi would have adopted features such as the faint horizontal lines on the can (present on Thatchers but absent from the rest of Aldi’s Taurus range) was to evoke the Thatchers mark. As Arnold LJ memorably observed, “it is often the reproduction of inessential details which gives away copying.”[18]
From these findings, the court concluded that there had been a “transfer of image”: Aldi had communicated to consumers that the Taurus product was “like the Thatchers product, only cheaper”, and had thereby benefited from Thatchers’ marketing spend without making the corresponding investment.[19] This is, in substance, a holding that intentional benchmarking, combined with consumer-facing visual signalling, constitutes unfair advantage even absent confusion or tangible loss here.
C. Critical assessment: covert unfair competition?
Three observations follow. The first is that the test is now heavily intention-driven. While the CJEU has consistently held that intention is not a necessary element of s 10(3), the Thatchers court relied on subjective evidence of design intent in a way that would be familiar in any unfair competition jurisdiction. Bently has noted that English trade mark law has a “confused relationship” with unfair competition principles, and Thatchers arguably illustrates that confusion in operation: the doctrinal vocabulary is trade mark, but the operative reasoning is competition morality.[20]
The second is that the threshold for “link” plus “unfair advantage” has become quite low. The Court of Appeal accepted that there was a link essentially because Aldi conducted no other marketing of its Taurus lemon variant, meaning that any consumer awareness must derive from association with Thatchers. That reasoning has a curious circularity: the absence of a defendant’s own marketing investment is treated as evidence that the consumer’s perception is being parasitically derived. Yet in the typical own-brand case, the entire commercial strategy depends on minimal advertising spend – that is what makes own-brand products cheaper. To treat low marketing as itself probative of unfair advantage risks penalising the legitimate cost structure of discount retail.
The third, and perhaps most poignant, observation is jurisprudential. Sir Robin Jacob in L’Oréal warned that the unfair advantage doctrine, taken to its logical conclusion, would prohibit any commercial reference to a competitor’s product, however truthful.[21] He called this “the wrong policy” and predicted that English courts would seek to constrain it. Thatchers suggests that, at least in the lookalike context, English courts have moved in the opposite direction. Arnold LJ’s acknowledgement that Aldi’s conduct would likely be actionable in German unfair competition law[22] is candid recognition that English trade mark law is now performing functions originally performed elsewhere by a distinct doctrinal regime.
IV. The Designs Route: M&S v Aldi
Where Thatchers developed s 10(3), M&S v Aldi demonstrates the parallel utility of registered designs as a lookalike defence. M&S had registered several designs in respect of its “Light Up” snow-globe gin liqueur bottle (a clear bottle with internal LED illumination, gold flake suspension and a winter-scene silhouette). Aldi launched a remarkably similar bottle in late 2021. Unlike trade mark law, registered design protection requires no proof of confusion or reputation: it gives the proprietor the exclusive right to use any design that does not produce on the “informed user” a different overall impression.[23]
At first instance, HHJ Hacon held that the similarities – bottle shape, stopper, winter scene, light, gold flakes – were cumulatively “striking” and that, taken against the design corpus, the Aldi product did not produce a different overall impression.[24] On appeal, Arnold LJ confirmed the analysis and clarified two important procedural points: that the “indication of product” entered on the design register (here, “Light Up Gin Bottle”) may resolve ambiguity in the visual representation,[25] and that the twelve-month grace period for the designer’s own disclosures applies in infringement proceedings as well as validity.[26]
What distinguishes the designs route is its conceptual clarity. There is no doctrinal contortion required: the wrong is the reproduction of the protected design, full stop. The designer’s investment is rewarded by a monopoly for the registration period; the public benefits from the eventual entry of the design into the commons. Where a brand owner is willing and able to register the visual elements of its product – and to do so before the lookalike emerges – registered designs offer the most theoretically coherent protection. The practical limitation is that few brand owners do so consistently: design registration is treated as a niche IP strategy in the food and drink sector, and many distinctive get-ups are protected only by reputation and registered trade marks. The lesson of M&S v Aldi for practitioners is straightforward: where a product’s visual identity is novel and commercially significant, register it.
The deeper jurisprudential point is that the designs system is, in this context, doing exactly what an unfair competition tort would do – preventing close visual imitation of a commercial product – but with two advantages: it is conceptually transparent (one knows what one is protected against and for how long) and it requires the proprietor to invest in formal registration, which both signals seriousness and creates a public record. By contrast, s 10(3) achieves much the same outcome but obscures the analysis behind language about “reputation”, “link”, and “unfair advantage” that does not naturally fit the lookalike scenario.
V. A Normative Re-evaluation
A. The case for restraint: lookalikes as competition
Any normative analysis must engage seriously with the case for permitting lookalikes. The strongest version of that case is welfarist. Lookalike pricing, by undercutting the branded product, generates substantial consumer surplus, particularly for lower-income households. The Office of Fair Trading’s 2009 study estimated that own-brand products priced at parity with branded products would reduce consumer welfare by hundreds of millions of pounds annually.[27] Aldi and Lidl have, on this view, transformed UK food retail by demonstrating that consumers will choose own-brand alternatives if quality is acceptable and price is materially lower. The visual referencing of branded products is part of the mechanism by which consumers are informed of the comparison.
A second strand of the argument is doctrinal humility. As Posner has observed, the law of misappropriation has a “tendency to grow without limit” once unmoored from the requirements of confusion or copying of substantive content.[28] If the wrong becomes “evocation of a competitor”, almost any product launched in a category dominated by a strong brand is at legal risk. The chilling effect on legitimate competition could be significant, particularly for new entrants who, by definition, must position themselves relative to incumbents.
A third strand is institutional. English law has historically drawn a sharp line between intellectual property and unfair competition because it recognises that the former is conferred by Parliament through specific statutory instruments calibrated to particular kinds of investment, while the latter risks an open-ended judicial assessment of commercial morality.[29] Burrell and Gangjee have argued that expansive readings of trade mark law in particular threaten freedom of commercial expression, since they constrain the visual vocabulary available to competitors. This is a respectable position and the partial movement seen in Thatchers should give it serious pause.
B. The case for protection: information costs and signalling
Against this, however, the case for some legal restraint of lookalikes is also serious, and it does not rest on the protection of brand owners as such. It rests on the information economics of consumer markets. The function of a brand, on an economic view, is to reduce search costs by serving as a credible signal of quality.[30] That signal is built through cumulative investment – in product development, in quality control, in advertising. A lookalike free-rides on the signal: it borrows the cognitive shortcut without bearing the cost of generating it. Over time, if such borrowing is unconstrained, the incentive to invest in the signal in the first place is diluted, leaving consumers worse off in the long run even if some individual transactions are cheaper.
The second supporting argument concerns the realistic conditions of consumer choice. The doctrinal figure of the “reasonably well-informed and reasonably observant” average consumer[31] assumes a degree of attention that empirical studies of supermarket shopping cast into doubt. Where decisions are made in seconds, with limited shelf attention, the visual gestalt of packaging does much of the work that is formally attributed to brand name recognition. Bohaczewski has argued, persuasively in my view, that the average consumer construct underestimates the role of low-attention pattern matching in fast-moving consumer goods.[32] If that is right, then visual mimicry is not “merely evocative”; it is functionally a form of brand substitution, even where the consumer, asked directly, would correctly identify the manufacturer.
The third argument is comparative. The treatment of lookalikes as actionable unfair competition is the prevailing position across most major civil law jurisdictions. Article 10bis of the Paris Convention has long required signatories to protect against “all acts of competition contrary to honest practices in industrial or commercial matters.”[33] The United Kingdom has historically considered itself in compliance through the combined operation of passing off, trade mark law, the Consumer Protection from Unfair Trading Regulations 2008 and, now, the Digital Markets, Competition and Consumers Act 2024.[34] But the compliance is patchwork. The German UWG, by contrast, contains a specific provision (§4 Nr. 3) against imitation that exploits or impairs the reputation of a competitor.[35] That is the operative function of Thatchers, achieved by indirect means.
C. An novel normative thesis
The argument of this essay is that the better conceptual response is neither the libertarian position (lookalikes are fair game, brand owners should register harder) nor the protectionist position (s 10(3) should be read generously to deter benchmarking). It is, rather, that English law should acknowledge openly what it has now done covertly, and legislate a narrow statutory wrong of unfair commercial imitation, defined by three cumulative elements: (i) intentional benchmarking against an identifiable competitor product; (ii) consumer-facing visual signalling designed to communicate equivalence; and (iii) absence of independent marketing investment by the imitator. This formulation captures what Thatchers has tacitly held to be wrongful while excluding the cases – generic packaging cues, descriptive features, unintentional resemblance – that should remain outside the law’s reach.
The advantages of this approach are several. First, it removes the doctrinal awkwardness of routing competition concerns through s 10(3), which was designed primarily for the protection of famous marks against dilution. The current solution requires that a brand owner have a registered get-up trade mark (as Thatchers fortunately did), which is a haphazard prerequisite. Smaller producers and newer brands, whose visual identity is no less worth protecting, are excluded by what is effectively a registration formality unrelated to the merits.[36] Moreover, it brings English law into substantive alignment with the unfair competition standards of the jurisdictions with which it most directly competes. Additionally, it permits Parliament to set the appropriate balance between consumer welfare (which favours own-brand entry) and incentive preservation (which disfavours pure free-riding), rather than leaving that calibration to the open-textured language of “unfair advantage”.
The principal objection is that a new statutory wrong creates uncertainty and litigation. But this objection cuts both ways: the present position also creates uncertainty and litigation, as Thatchers itself, with its reversal at appellate level, demonstrates. The choice is not between a clean rule and a messy one; it is between two forms of mess, one of which is doctrinally honest about its objects and the other of which is not. The objection of “chilling effects on competition” can be addressed by drafting: the proposed elements are deliberately narrow, requiring proven benchmarking intent and a particular kind of signalling, rather than a general prohibition on similarity.
A further objection draws on Davis’s suggestion that the absence of a misappropriation tort in English law has been a virtue, generating productive judicial creativity and avoiding the over-reach of the American “hot news” doctrine.[37] The response is that Thatchers demonstrates the creativity has now produced exactly the over-reach Davis feared, but without the procedural and conceptual safeguards a properly drafted statutory action would carry. The s 10(3) route involves an inference of unfair advantage from intention and from low marketing spend; it does not require, for example, evidence of actual harm to the claimant’s sales or quantification of free-riding benefit. A statutory tort could build in such requirements, providing clearer guidance to commercial actors about where the line falls.
Finally, the proposal sits well with the broader trajectory of the Digital Markets, Competition and Consumers Act 2024, which has updated and consolidated the consumer protection framework, and which already prohibits misleading commercial practices in a manner that approaches, without fully reaching, the lookalike question.[38] A narrow statutory wrong of unfair commercial imitation would complete the architecture, providing brand owners with a transparent cause of action and discount retailers with a clearer ex ante rule than the current case law affords.
VI. Conclusion
The question posed – whether lookalike products are a legitimate competitive strategy or a threat to brand identity – admits of no monolithic answer. They are both: legitimate where they communicate price-based substitutability without exploiting the cumulative investment of the original, illegitimate where they harvest that investment through intentional visual benchmarking. The Court of Appeal in Thatchers v Aldi and M&S v Aldi has now drawn the line further toward the brand owner than the historical position permitted, and it has done so largely through expansive readings of statutory provisions (s 10(3) TMA 1994 and the Registered Designs Act 1949) rather than through the more conceptually appropriate but politically harder route of legislating against unfair competition directly.
That judicial development is, on balance, normatively welcome. The pre-Thatchers equilibrium left brand owners with little realistic remedy against sophisticated visual mimicry and produced a curious situation in which English law was an international outlier on a matter of straightforward commercial morality. But the route by which the equilibrium has been adjusted, the gradual swelling of s 10(3) into something it was not designed to be, is doctrinally costly. Trade mark law was conceived to protect the origin function of registered signs; it now performs, additionally, the function of regulating commercial morality between competitors. The two functions sit uneasily together and the resulting case law is intensely fact-specific, intention-dependent, and unstable in its application to producers without registered get-up.
The honest response is legislative. A narrow statutory wrong, framed in terms of intentional benchmarking and consumer-facing signalling, would discharge the function now being discharged covertly by s 10(3); it would distribute the protection more equitably between large and small brand owners; and it would set the boundary of legitimate competition in language clearer than that of “unfair advantage”. The conclusion to which the recent case law points, in other words, is not that lookalikes have been definitively dealt with by Thatchers and M&S v Aldi, but that those decisions have made the absence of a candid statutory framework less defensible than it was. Whether Parliament rises to that legislative invitation, or leaves the courts to continue refining a doctrinal solution to a problem trade mark law was never built to solve, will determine the next chapter in the law of lookalikes.
[1]Thatchers Cider Company Ltd v Aldi Stores Ltd [2025] EWCA Civ 5, [2025] Bus LR 234 (Thatchers CA).
[2]Marks and Spencer plc v Aldi Stores Ltd [2024] EWCA Civ 178, [2024] FSR 14.
[3]See L Bently and others, Intellectual Property Law (6th edn, OUP 2022) 1052–1056; J Davis, ‘Why the United Kingdom Should Have a Law Against Misappropriation’ [2010] CLJ 561.
[4]Trade Marks Act 1994, s 10(1)–(3); Reckitt & Colman Products Ltd v Borden Inc [1990] 1 WLR 491 (HL) (the Jif Lemon case).
[5]Case C-487/07 L’Oréal SA v Bellure NV [2009] ECR I-5185; L’Oréal SA v Bellure NV [2010] EWCA Civ 535, [2010] RPC 23 (Jacob LJ).
[6]Thatchers CA (n 1) [98] (Arnold LJ): noting the irony that Aldi’s conduct would likely be actionable in unfair competition law in Germany.
[7]Reckitt & Colman (n 4) 499 (Lord Oliver), setting out the classical trinity of goodwill, misrepresentation and damage.
[8]Erven Warnink BV v J Townend & Sons (Hull) Ltd [1979] AC 731 (HL) 742 (Lord Diplock).
[9]Thatchers Cider Company Ltd v Aldi Stores Ltd [2024] EWHC 88 (IPEC), [2024] FSR 17 (Thatchers IPEC) [191]–[196].
[10]A Carboni, ‘Confusion Clarified? The Supreme Court Misses an Opportunity in Iconix v Dream Pairs’ (2025) 47 EIPR 412, 415–417, discussing post-sale confusion doctrine.
[12]See Aldi’s celebrated #FreeCuthbert Twitter campaign, discussed in J Bosse, ‘The Case of the Caterpillar Cakes’ (2022) IPKat, 9 February 2022.
[13]Trade Marks Act 1994, s 10(2)(b); Case C-251/95 Sabel BV v Puma AG [1997] ECR I-6191 [22]–[23]; Case C-39/97 Canon Kabushiki Kaisha v Metro-Goldwyn-Mayer Inc [1998] ECR I-5507.
[14]Case C-252/07 Intel Corp Inc v CPM United Kingdom Ltd [2008] ECR I-8823 [30]; L’Oréal (n 5) [41].
[15]L’Oréal (n 5) [49]–[50] (CJEU).
[16]Thatchers IPEC (n 9) [165]–[179].
[17]Thatchers CA (n 1) [120]–[140] (Arnold LJ).
[18]ibid [136].
[19]ibid [144]–[146].
[20]L Bently, ‘Trade Mark Law and Unfair Competition: A Confused Relationship’ in N Wilkof and S Basheer (eds), Overlapping Intellectual Property Rights (OUP 2012) 235, 247.
[21]L’Oréal v Bellure [2010] EWCA Civ 535 [49]–[55] (Jacob LJ, expressing strong reservations).
[22]Thatchers CA (n 1) [98] (Arnold LJ).
[23]Registered Designs Act 1949, s 7(1).
[24]Marks and Spencer plc v Aldi Stores Ltd [2023] EWHC 178 (IPEC), [2023] FSR 11 (HHJ Hacon); affd M&S v Aldi CA (n 2).
[25]M&S v Aldi CA (n 2) [42]–[60] (Arnold LJ).
[26]ibid [89]–[96].
[27]Office of Fair Trading, The Impact of Lookalike Packaging on Consumers (OFT 1059, 2009) [4.12]–[4.18].
[28]R Posner, ‘Misappropriation: A Dirge’ (2003) 40 Hous L Rev 621, 628.
[29]See further L Bently and others (n 3) 1118–1122; R Burrell and D Gangjee, ‘Trade Marks and Freedom of Expression: A Call for Caution’ (2010) 41 IIC 544.
[30]M Spence, ‘Passing Off and the Misappropriation of Valuable Intangibles’ (1996) 112 LQR 472, 482.
[31]See J Davis, ‘Locating the Average Consumer: His Judicial Origins, Intellectual Influences and Current Role in European Trade Mark Law’ [2005] IPQ 183.
[32]S Bohaczewski (n 30) 427–428.
[33]Paris Convention for the Protection of Industrial Property (adopted 20 March 1883, as revised) art 10bis.
[34]Consumer Protection from Unfair Trading Regulations 2008, SI 2008/1277, reg 5; superseded in part by the Digital Markets, Competition and Consumers Act 2024, Part 4.
[35]See, by analogy, the German Gesetz gegen den unlauteren Wettbewerb (UWG) §4 Nr. 3, which expressly prohibits “imitation” causing avoidable deception or exploiting reputation.
[36]British Brands Group, The Cost of Copycat Packaging (BBG 2010) 12–14 (industry-funded but methodologically influential).
[37]J Davis (n 3) 580, arguing that the absence of a general misappropriation tort generates ad hoc judicial improvisation.
[38]Digital Markets, Competition and Consumers Act 2024, ss 224–230 (unfair commercial practices regime, brought largely into force April 2025).
Objections & Opinions 