"Like brands, only cheaper". So goes the Aldi advertising slogan. But the similarity between the brands that inspire it, and its own products, has long been a bone of contention (particularly) for small creators. You design a product, cultivate a following, become a success... and then find a copycat launched by a discounter for a fraction of the price. 

Aldi and other discount retailers are often accused of selling copycat products, and their usual response is that the product is part of a "trend" and no intellectual property rights have been infringed. They may also say that they will stop selling without admission of liability.

The famous makeup brand Charlotte Tilbury ("CT") took issue with one particular Aldi product that imitated its “starburst” design. While Aldi rejected the claim, CT refused to give up, and issued proceedings for copyright infringement over the products shown in the image. The makeup powder products on the left are CT's original products, and the products on the right were produced by Aldi.

Claiming copyright infringement in respect of mass produced three dimensional items is notoriously difficult. The English courts have historically been reluctant to describe them as "sculptures" or "works of artistic craftsmanship", even when a great deal of creativity and work goes into them. However, in this case CT could rely on the "starburst" design on its products. 

This meant that (subject to some interesting technical arguments, e.g. about the extent to which a pattern debossed into makeup was sufficiently "fixed" to warrant copyright protection) CT could establish that its design was an artistic copyright work that had been substantially copied by the Aldi product. CT applied for summary judgment (i.e. a way of bringing proceedings to an end quickly) and the court found in CT's favour - Aldi will now need to pay damages and costs.

Brands that might find their products imitated in cheaper versions might draw some interesting lessons from this case. 

First, where a feature of a product contains some artistic design, the imitator will have to be very careful about how they reference that design. While the (IP rights) tail should never wag the dog, building such designs into products definitely helps when it comes to protection.

Second, not all of these cases are destined for the lower cost / lower damages Intellectual Property Enterprise Court. Aldi tried to get the case transferred in order to reduce its costs risk, but failed. Interestingly, CT still managed to get summary judgment despite having argued that the case was too complicated for the IPEC.

Third, in such cases, brands need to pick their IP rights carefully. In this case, there was a good copyright claim. The passing off claim was dropped early on, presumably on the basis it was thought to be weak. Registered trade marks can be helpful, but are difficult to obtain for the shape of products. Registered and unregistered designs are an often neglected tool. A well thought out patchwork of rights is likely to be the best model.

Individual battles can go either way - indeed, Aldi has won some in the past - but the brand vs. discounter war rumbles on.