By Riad Beladi
In the fiercely competitive grocery industry, brand identity is everything. A product’s packaging is not merely a design choice; it is a psychological trigger that taps into consumer familiarity and trust. This is precisely why many companies find themselves embroiled in “passing off” cases — legal disputes in which one party claims another is attempting to mislead shoppers by imitating the appearance of their well-established and widely marketed product.
Across both the United States and Europe, International Supermarket News has followed numerous cases where lesser-known brands or new entrants have allegedly mimicked the packaging of popular products. The strategy, often subtle yet powerful, aims to catch the consumer’s eye — hoping they will associate the lookalike product with the reputation, advertising, or buying habit linked to the original brand. This practice, while not uncommon, is legally fraught.
Proving passing off in court, however, is notoriously difficult and extremely costly. The plaintiff — typically a household-name brand with strong market presence — must demonstrate several key factors: that their product enjoys goodwill, that the lookalike causes confusion in the minds of consumers, and that their business suffers damage as a result. This burden of proof is not easily met and often hinges on detailed surveys, expert testimony, and extensive documentation.
Legal professionals, particularly solicitors and barristers involved in intellectual property law, often command substantial fees, making these lawsuits some of the most expensive to pursue. As one seasoned retail executive put it bluntly: “They will suck your blood.” The length of proceedings, the ambiguity of legal interpretation, and the need for international legal coordination further complicate matters.
In one recent high-profile case in Europe, a major cereal brand accused a discount retailer of copying its colour scheme, font, and layout. While the court acknowledged similarities, it ultimately ruled that the differences were sufficient to avoid deception — a result that left the plaintiff with not only legal fees but a bruised brand strategy.
Brands are now becoming more proactive, investing in distinctive and trademarked packaging early on and regularly monitoring the shelves for imitators. Meanwhile, some retailers are taking the view that packaging similarity is merely fair competition — especially if the alternative product delivers similar quality at a lower price.
Ultimately, passing off remains a grey zone where design, psychology, and law intersect — and where the stakes are increasingly high. As the grocery market continues to evolve, with new players constantly entering the field, one thing remains certain: the courtroom will continue to be a battleground for brand protection.