We’re talking copycats; businesses that ride on the coat tails of others, by making and selling lookalike products.

Promotional Business Feature. Pictured: Victor Caddy
Wynne Jones

After all, who doesn’t like a bargain, and Christmas is expensive enough anyway. It’s a vital time for many legitimate businesses, but also a (Christmas) gift for copycats.

Lookalike toys look the same as the real thing. It’s just got a different name. It even comes in a box in the same colours and with similar looking artwork. It must be the same toy, right? Wrong. Copycats are not only cheap, they are inferior and often break before the Turkey’s wishbone, and they frequently do not meet safety standards (think lead paint and you get the idea…).

Aren’t copycat products illegal?

Yes…And no.

Sometimes a product is so obviously a copy that the owner of the original work can enforce its intellectual property rights, get the lookalike product off the shelves, and even get damages for lost sales. Here’s a ghost of Christmas Past: Big Little Toys successfully claimed copyright infringement of its product “An Elf for Christmas” against lookalike “Magical Christmas Elf” being sold by B&M Bargains, and they secured a settlement of £25,000 plus costs.

In other cases, however, it’s not so clear cut. The manufacturers of lookalike products are ingenious when it comes to making small changes that are often indiscernible to consumers, but nevertheless enough to discourage legal action against them. And the manufacturers of genuine products are often resigned to having their toys and games knocked off because they know the law doesn’t always help them as much as it should.

If there are weaknesses in your intellectual property protection, copycats will find it. Any copycat can avoid trade mark infringement by simply adopting a different name; most toys and games are not patentable, and that only leaves designs and copyright. Design registration is hopelessly under used by businesses (and often badly used), and copyright requires proof of copying. So, many businesses leave themselves horribly exposed and at the mercy of copycats.

But it isn’t just sales that get hit. Reputations do too. Many consumers simply do not realise they bought a fake. Even if they do, it is often too late. Last December, trading standards officers in Lincolnshire seized fake versions of the L.O.L Surprise! Doll that were being sold locally after they received complaints from angry parents who thought they were buying the genuine product. When parents arrived home they discovered the toys were faulty and failed to perform like the genuine dolls. They even had screws in their backs that were dangerous to small children.

This isn’t an isolated incident. Up and down the country, (and not just at Christmas), parents – and children – are being duped. In 2013, the UK IPO said:

“There is a lookalike effect. In essence: Consumers are more likely to make mistaken purchases if the packaging of products is similar and there is strong evidence that consumers in substantial numbers have made mistakes; Consumers’ perceptions of the similarity of the packaging of goods are correlated with an increased perception of common origin and to a material degree. There is also an increased perception of quality; the lookalike effect increases consumers’ propensity to buy a product in similar packaging.“

In a recent study, the British Toy and Hobbycraft Association purchased 200 toys from online stores and found that 58% were illegal to sell in the UK as they failed to meet safety regulations and 22% had serious safety failures “which could cause serious injury or death to a child.”

The Code of Conduct

To address the epidemic and tackle the problem, we’ve teamed up with Mojo Nation who support toy and game inventors in the development of their ideas, fuelling collaboration across the global toy and game sector as well as designers and retailers, to create a Code of Conduct for the toy and game industry. The goal is to discourage the manufacture, stocking and sale of fake toys and games and to make it easier for consumers to spot and avoid fakes. We believe we can achieve the former by achieving the latter. Of course, we need the support and goodwill of the industry – but, judging by the feedback we have had so far, we have that in abundance.

We plan to use a joined up approach, with everyone represented in a forum made up of retail buyers, designers and heads of R&D. Under the Code, manufacturers will agree not to create copycat products and retailers will agree not to stock clear copycat products. Our vision is of a pioneering industry that promotes a fair and safety conscious trading environment that recognises and rewards the intellectual investment of toy and game creators, even where the law may be too blunt an instrument to be of much help. By so doing, we hope to restore Santa’s reputation and ensure that the toys and games he delivers are the ones actually implored in the many heart-felt letters he receives.

A Christmas Poem from Wynne-Jones IP

Christmas comes but once a year; A crucial time for traders dear. A time for sales to make the year And keep the New Year without fear Of feast and famine, A time to merry make and riches win. But, sad to say, There’re those that may Seek to steal your hard earned trade, And hapless consumers to persuade To buy not yours, but theirs! ‘Tis humbug! But ‘twill end in children’s tears.

Merry Christmas!

For further information and expert advice please contact Victor Caddy, Director and Trademark Attorney victor.caddy@wynne-jones.com

+44(0)1242 267600 / www.wynne-jones.com