No private right of action against copycats under Unfair Commercial Practices Directive

United Kingdom

The Consumer Protection from Unfair Trading Regulations, which will implement the Unfair Commercial Practices Directive (UCPD), are due to come into force by April this year. The UCPD is intended to harmonise unfair trading laws across the EU, introducing a general prohibition against traders treating consumers unfairly. In particular, the Directive obliges businesses not to mislead consumers by marketing a product in a way that creates confusion with any products, trade marks, trade names or other distinguishing marks of a competitor. This is likely to include the use of copycat or look-alike packaging.

However, one of the provisions left to the discretion of Member States is the enforcement of the Directive. The Government has now confirmed, as expected, that there will be no private law right of action against businesses who mislead consumers. Consumers who have been misled, and businesses whose packaging has been copied, will have to rely on the Office of Fair Trading and Trading Standards to enforce the UCPD against traders who use look-alike packaging. These bodies have a duty to allocate their resources according to public interest considerations, and they have previously indicated that taking action against look-alike packaging may be a low priority.

Brand owners may regard this as an opportunity missed. Unlike brand names and logos, it is difficult to protect the general appearance and get-up of packaging using registered trade marks. To take action against copycat packaging, brand owners will continue to have to rely on the law against passing off, claims under which are regarded as unpredictable and difficult to make out.

To view the relevant Hansard entry, click here and search text for “Unfair Commercial Practices Directive”.