Aldi Slides Past Moroccanoil in Lookalike case

The Intellectual Property Enterprise Court has concluded that the presentation of Aldi’s Miracle Oil product does not constitute passing-off of the high-end Moroccanoil product, despite evidence that it was widely perceived as a rip-off or lookalike. Moroccanoil have the market leading argan oil product in the UK. They became aware of Aldi’s marketing and sale of a product which shared very similar presentation and packaging to its own, including the bottle shape and colour, label colours and packaging colours. They had also found multiple instances of websites referring to the Aldi product as a clear low-cost and quality rip-off of the Morocaanoil original. Moroccanoil alleged that it owned goodwill identified by the look of its product and its packaging and that the presentation of the Aldi product misled customers, leading to damage to Moroccanoil. Aldi, for its part, alleged that whilst there might have been confusion, no-one was misled as to the origin of the goods (no-one thought it came from Moroccanoil) and that as a result there was no misrepresentation of the kind which is stopped by the law of passing-off. The Court agreed with Aldi and dismissed Moroccanoil’s claim.

The case is one of a number of cases in recent times regarding lookalike products which has led to disappointment for market leaders and represents an on-going concern across branded goods that the law is not sufficiently strong as against lookalikes that “sail close to the wind”. The problem seems to be how to deal with those that do not infringe trade mark or design registrations since they choose sufficiently different marks or alter other aspects of pack design just enough to avoid liability, but intend (and succeed) in poaching customers with low cost rip-offs. The case highlights the need to consider the full portfolio of rights you own. Our recommendation is to engage in an analysis to check whether you own a sufficient “armoury” to take on competitors who would seek to get too close. Within our firm we have a number of attorneys who have worked in industry and can help to advise on the best ways of acquiring rights to protect your products from copying. Further, we are finalising a discussion and analysis paper on the state of the law which will address positive strategies for protection and will share experience on the protection and enforcement of rights in the context of a big brand battling supermarket and lower-market lookalikes.

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