Copycat Products and Intellectual Property
It has been said that imitation is the sincerest form of flattery. In some cases, it may well be. In many cases, the contrary is true. Businesses, whether limited companies, partnerships or sole traders, invest significant resources into developing their products. The intellectual property (IP) that is generated by these businesses may be a particular shoe shape, a mascara bottle, a chair or even records.
Alongside these designs, which may qualify for Registered Design protection or be covered by unregistered design right, there is likely to be other forms of IP protection such as trade marks and copyright.
Copycats seek to take an unfair commercial advantage of the work undertaken by these businesses by benefitting financially without the risk, cost and time associated with creating a product or brand worthy of IP protection.
Unfortunately for brand owners, it is not only copycats that they have to be concerned about. Many LLMs (commonly known as “AI Platforms”) are now being “fed” vast volumes of IP protected works to enable them to “learn” and regurgitate output.
Consequently, businesses need to develop a proactive strategy to safeguard their Intellectual Property Rights (IPR). The best way to safeguard is to have a diverse portfolio of IP protections, insofar as it is possible to secure them because litigation is not straightforward and it is entirely possible that the ‘creation’ will straddle several IPRs.
Stuart Southall of KANGS outlines the business impact of copycat products, the importance of protecting intellectual property rights and the potential consequences of copyright infringement.
Building an Effective Intellectual Property Protection Strategy
It is important to build a link between your IPR and public awareness. For example, the Golden Arches are instantly recognisable as McDonalds which shows that element of its Trade Mark portfolio is that strong.
Litigation is effectively won on the strength of the evidence disclosure and so, in circumstances where it becomes necessary to pursue litigation, whether in the High Court or the Intellectual Property Enterprise Court (IPEC), you will need, at a minimum, the following evidence:
- records of marketing campaigns and promotional materials,
- sales figures (including “slumps”) and the means of those sales,
- evolution of the product,
- national / international awards that may be won,
- general public consensus of recognition.
Registered Designs, Trade Marks and Patents
A strong portfolio will include, where appropriate, registered designs and patents. A registered design will protect:
- shape,
- configuration,
- pattern and
- ornamentation.
A strong benefit of a Registered Design is that there is no requirement to prove ‘association’, i.e. the consumer links that product to your business. As a result, for many businesses, Registered Designs are often cost-efficient protections.
Patents primarily protect inventions and technical innovations rather than aesthetics. They are expensive and timely to secure but if obtained, provide a substantive monopoly.
When Does a Copycat Product Become Intellectual Property Infringement?
Not all copycat produced work will automatically be an infringement of a businesses IPR.
Some IP, such as copyright, protects the expression of an idea, rather than the idea itself and so, the law allows an extent of ‘commercialism’ to enable competitors to exist and produce products for a different level of customer. For example, generic drugs rather than patented branded drugs, for those who do not mind a ‘lookalike’ but are under no illusion that it is not the branded product, not least because there is probably a price differentiator between the lookalike and the premium product.
There is a fine line though. In many instances, it is up to the IPR owners to police and protect their IP and subject to the outcome of that protection, may involve specialist bodies including Trading Standards, Police Intellectual Property Crime Unit, and Federation against Copyright Theft (“FACT”), amongst others. Depending on the severity of those findings, enforcement may also involve the Court on both a civil and criminal basis.
Criminal cases may often result in a custodial sentence. When dealing with criminal allegations, the Court will look at things ‘in the round’ but the test it applies, when looking at counterfeit products is “the key time to assess conspiracy charges is the point at which the agreement to commit an offence is made,” Bootleg merchandise affects both the creatives and owners who created and protected the works and consumers because there may be safety issues.
Copyright Infringement Cases
Copyright infringement can be a criminal offence and may be prosecuted by the Crown Prosecution Service or Trading Standards. Recently, there have been cases brought for infringement that has resulted in custodial sentences and fines for infringers:
- Iqbal-v-City of Wolverhampton City Council [2025] EWCA Crim 498 who sought to appeal the first instance decision sentencing them to 2 years 7 months imprisonment for selling fake tech and consumer goods infringing the rights of Samsung, Nike and Sky to the perceived detriment of these IP holders in the sum of £1.9 million.
In this appeal before the Court of Appeal Criminal Division, the Court of Appeal upheld the first instance Judge’s application of the principles of Saik, confirming that the prosecution was only required to prove intent to commit an offence, not knowledge that an offence was being committed.
- Rehan Ahmed was investigated by the Police Intellectual Property Crime Unit following a referral from the British Phonographic Industry. He was charged under s107 Copyright, Designs and Patents Act 1988 and s239 Proceeds of Crime Act 2002 and found guilty. Rehan Ahmed was concurrently sentenced to 2 years 8 months for copyright breaches and 3 years 6 months for the Proceeds of Crime criminal property charge for running ‘Phoenix of Vinyl’ producing “fake” music records of artists such as the Beatles, Taylor Swift, Ed Sheeran, Adele and Beyonce and generating over £2.7 million in sales.
As such, whilst it may seem that there is little harm done by the sale of a fake branded bag or watch, not only does it deprive the IPR owners of revenue, but it can also increase prices for consumers and potentially may place the public at risk where the product is not manufactured to the required specification.
How Can We Assist?
A registered trade mark can be one of a business's most valuable assets, particularly where it has strong recognition and high commercial value. At KANGS, our intellectual property solicitors advise on all areas of trade mark law and regularly assist clients involved in complex IP disputes.
Whether you are seeking to enforce your trade mark rights or responding to allegations of infringement, our trade mark lawyers https://www.kangssolicitors.co.uk/people/ provides clear, strategic advice focused on protecting your brand, reputation and commercial interests.
Contact us using the details below and a member of our team will be delighted to assist you.
Tel: 0333 370 4333
Email: info@kangssolicitors.co.uk
We provide initial no obligation discussion at our three offices in London, Birmingham, and Manchester. Alternatively, discussions can be held through video conferencing or telephone.
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