Copying is said to be the highest form of flattery, but when does inspiration become infringement? With a range of intellectual property (IP) rights available, it’s important for brands to be aware of the full range of protections and possible routes of action to protect their most important products and designs.
We explore the continued trend of lookalikes and the key rights and causes of action available across the UK, Europe and Asia to address them.
What are lookalike products and how are they tackled?
Lookalike products take inspiration from popular or iconic existing products and can range from products that are almost identical to the original, to products that are merely reminiscent of the famous product that came before. Often (though not always) the lookalike product is offered at a lower cost, presenting an alternative for many consumers.
While benchmarking and taking inspiration from competitors is common practice in the design sphere, sometimes these lookalike products are too similar and brands consider them to be harmful to the investments made into their reputation, image and distinctiveness. There is a very important distinction between taking inspiration from competitors and infringing their IP rights. This distinction, however, may depend on the specific IP right in question.
Often, lookalike products can be tackled through a patchwork of IP rights such as trade mark, copyright, passing off/unfair competition and registered and unregistered design infringement. In the interests of certainty, brands are encouraged to ensure they have the appropriate IP registrations for their products where possible and to ensure they keep appropriate records for proving subsistence of unregistered rights.
Emerging trends
The growth of social media and influencer marketing has created new opportunities for the promotion and normalisation of lookalike products. Increasingly, consumers are exposed to products marketed as alternatives to established brands, often with an emphasis on achieving a similar aesthetic, functionality or perceived quality at a significantly lower price point (often referred to online as ‘dupes’).
On 17 September 2026, the UK Intellectual Property Office (UKIPO) published research on counterfeits and lookalikes. The research indicates that younger consumers frequently use terms such as ‘dupe’ and ‘lookalike’ and often view lookalike products as posing less risk than counterfeit goods. This distinction is reflected in social media content, where influencers will usually promote ‘dupes’ as affordable alternatives to premium branded products rather than as substitutes purporting to be the genuine article.
Unlike counterfeits, where infringement is often clear-cut and there may be criminal routes to enforcement, disputes involving lookalikes generally require a more nuanced assessment of the product’s overall appearance, packaging, branding and marketing. As a result, rights holders need to consider relying on a combination of trade mark rights, design rights, copyright and passing off (or unfair competition) claims to take lookalikes off the market.
The rise of artificial intelligence (AI) presents both opportunities and challenges in this area. AI tools may rapidly generate product concepts, imagery, packaging designs and branding materials that closely resemble existing products, lowering the barriers to creating convincing lookalike products at scale. Coupled with the continued growth of e-commerce platforms and online marketplaces, this may enable sellers to launch, market and relist lookalike products more quickly, creating practical enforcement challenges for rights holders.
At the same time, AI is increasingly being deployed as part of brand protection strategies. Image-recognition technologies may be trained to identify distinctive product features, shapes, packaging configurations and other visual characteristics associated with a brand’s products. These tools can assist rights holders in monitoring online marketplaces and identifying products that bear a close resemblance to protected designs or trade dress. While such technologies cannot replace legal analysis of whether a particular product infringes IP rights, they have the potential to improve the speed and scale of identifying problematic lookalike products in an increasingly crowded online marketplace.
If you do discover lookalike products, what rights can you rely on?
United Kingdom
Registered trade marks and passing off
Names, logos and packaging can all be registered trade marks. Shape marks are also possible, though they often face distinctiveness challenges to be registered. The most commonly used route in issues concerning lookalike products is infringement under section 10(3) of the Trade Marks Act 1994 (TMA), though other types of infringement actions are available.
To succeed under section 10(3) TMA, brands must establish that:
- their trade mark has a reputation in the UK;
- the lookalike product is using a similar or identical mark without consent in the UK;
- this use gives rise to a link between the disputed sign and trade mark in the mind of an average consumer; and
- this use gives rise to one of three types of injury, the most common for lookalike products being unfair advantage of the brand’s reputation or detriment due to dilution.
The link between the disputed sign and trade mark is often not an issue in lookalike product disputes; evidence of consumers describing the product as a ‘dupe’ or ‘rip off’ will often suffice.
In Thatchers v Aldi, the Court of Appeal found that Aldi’s use of packaging which closely resembled Thatchers’ Cloudy Lemon Cider packaging amounted to trade mark infringement under section 10(3) of the Trade Marks Act 1994. Although Aldi did not copy the Thatchers brand name or seek to deceive consumers into believing its product was Thatchers’, the Court held that Aldi had deliberately adopted a lookalike presentation intended to bring the Thatchers product to consumers’ minds and position its cider as a cheaper alternative. By doing so, Aldi obtained an unfair advantage from the reputation, distinctive character and marketing investment embodied in Thatchers’ packaging trade mark. The Court considered that the similarities between the products were too extensive to be coincidental and described it as an “inescapable conclusion” that Aldi intended consumers to be reminded of Thatchers’ product. The fact that Aldi did not intend to deceive consumers was irrelevant to the assessment of unfair advantage. The decision demonstrates that a lookalike product may infringe a reputed trade mark even where there is no likelihood of confusion, provided that it enables the trader to benefit from the reputation of the earlier mark.
Passing off is a flexible unregistered right which can protect features of product design, packaging and get-up which have ‘goodwill’, against third party misrepresentations causing damage to that goodwill. It can be a challenging case to make evidentially, and recent actions (such as in the Thatcher v Aldi dispute) have tended not to succeed. However, this right should always be considered as part of the brand owner’s enforcement strategy in the UK.
Copyright
Copyright protects original artistic and literary works under the Copyright, Designs and Patents Act 1988. It can subsist in text, logos, graphics, packaging designs and, in some cases, product designs, making it a useful and flexible route to tackle lookalike products. It does not require registration in the UK (though may do in other territories).
Copyright is infringed where the whole or a substantial part of a protected work is copied. Whether a part is ‘substantial’ is assessed qualitatively, not quantitatively. A part will be substantial if it contains elements that express the author’s own intellectual creation (Infopaq). In Lidl v Tesco, the Court of Appeal considered a version of Lidl’s logo consisting of the pre-existing Lidl text and yellow circle logo placed on a blue square background (the “Stage 3 Work“). The Court held that the Stage 3 Work was sufficiently original to attract copyright protection because the designer had made creative choices, including the shade of blue used, the positioning of the logo within the square and the spacing between the circle and the square. However, those creative choices also defined the scope of protection. Because Tesco had not copied the elements that made the Stage 3 Work original, it had not reproduced a substantial part of that work. The Court therefore overturned the finding that Tesco had infringed copyright in the Stage 3 Work.
Registered and unregistered design rights
The appearance of a product may be protected through design rights. Registered design rights can protect external shapes and colours of a product (among other things) while unregistered design rights may protect the shape or configuration of a product but not surface or colour decoration.
Unregistered design rights offer automatic protection for valid designs and can last for up to 15 years, meaning they are useful routes for action in lookalike disputes. Nevertheless, following cases such as Marks and Spencer v Aldi, registered design rights are increasingly considered viable routes to tackle lookalikes, and registration is relatively cost effective, quick and lasts for up to 25 years.
The key question for brands to consider when pursuing registered design infringement is whether the design creates the same overall impression on the informed user. Unregistered design rights may be infringed through reproducing the designs for commercial purposes.
Europe
Registered trade mark, copyright and design actions are available in the same way as in the UK, although there are some local procedural differences that can influence the overall strategy.
Germany
Unfair Competition
In Germany, original products or concepts can be protected against imitations under the Unfair Competition Act.
For an unfair imitation action to succeed, brands must prove that:
- the original product has a ‘competitive individual character’;
- there is an identical or similar imitation of a product on the market; and
- there are grounds for unfairness.
The concept of ‘competitive individual character’ is similar to distinctiveness in trade mark law, novelty in design law or intellectual creation in copyright law. It is satisfied if the imitated product has certain features that make it stand out from other products, which can be based on aesthetics, but also on technical features or a combination of both. Further, the products need to have achieved a certain position on the market in terms of reputation or market share.
The imitation must be based on the assessment that the particular features defining the ‘competitive individual character’ have been adopted. The closer the imitation, the easier it is to argue the grounds of unfairness.
Finally, the original producer must establish grounds for unfairness such as avoidable deception of commercial origin or exploitation of reputation, where deception is assessed in court on a largely theoretical basis. Due to the general freedom of imitation, the Courts have a tendency to take the unfairness criteria more seriously than in the past. Still, the rule of thumb is ‘the more original the original product and the closer the imitation, the more likely it is that the German courts will assume an avoidable deception of commercial origin’. Therefore, original producers still have a good chance to succeed in tackling lookalike products through this route, even if no trademark, copyright or design protection exists.
Spain
The ‘Blank Canvas’ doctrine
The Spanish EU Trade Mark and Designs Courts (all based in Alicante, Spain) have consolidated an enforcement-friendly approach both in the procedural and substantive fronts.
In urgent matters over the last three years, ex parte preliminary injunctions with pan-European effect are being awarded in between two and five working days. When sufficiently justified, the orders granting ex-parte preliminary injunctive relief include granting the claimant access to samples and inventories of the allegedly infringing goods.
From the perspective of the substantive law, the so-called ‘blank canvas’, ‘tabula rasa’ or ‘clean slate’ doctrine developed almost a decade ago has been applied on multiple cases. This doctrine starts with the principle that when a competitor is designing a competing product to a leading brand, the competitor has ‘infinite possibilities’ of creating a sign for its product, on a blank sheet of paper. If, in the Courts’ view, the result of filling in that blank sheet of paper was to create a sign very similar to the earlier mark, without making the investment and effort made by the original brand owner, such that the new entrant attempts to position itself in the market in the wake of the brand owner, the Court is likely to make an infringement finding.
The ‘clean slate’ doctrine is based in EU trade mark law and is considered robust when compared with various unfair competition actions.
Both the super swift ex parte preliminary injunctions and the ‘blank canvas’ doctrine are particularly attractive to claimants because the Courts have the prerogative to grant EU-wide injunctions not just where the defendant or claimant is established in Spain but also, crucially, where both parties to the litigation are established outside the EU. For this reason, Spain has become an increasingly attractive jurisdiction when designing the enforcement strategy in disputes with an international component.
Asia–Pacific
China
China continues to provide multiple avenues for action against lookalike products, including trade mark rights, design patent protection and unfair competition claims. Since our 2024 article, the Anti-Unfair Competition Law was amended, coming into force on 15 October 2025. However, the core provision relevant to lookalike products, being Article 7(1) (previously Article 6(1)), remains substantively unchanged, continuing to protect product names, packaging and decoration that have acquired a certain degree of market recognition and prohibiting acts likely to cause confusion as to commercial origin.
In addition, China’s revised Trade Mark Law, which will take effect on 1 January 2027, strengthens the trade mark enforcement framework and measures against bad-faith filings. Although the reforms have limited direct relevance to lookalike products, trade mark rights remain an important tool in tackling lookalike products where signs, logos, brand names or other source identifiers are reproduced in a manner likely to cause consumer confusion.
Hong Kong
In addition to trade mark rights and passing off claims, brand owners may also consider protecting their products through registered designs under the Registered Designs Ordinance (Cap. 522) (RDO). A registered design under the RDO can protect a product’s distinctive shape, configuration or packaging get-up. The protection period is up to 25 years in total, with an initial term of 5 years. For a registered design infringement claim, a claimant does not have to prove that there is a likelihood of confusion as is the case for a trade mark infringement claim.
Alternatively, brand owners who have not registered a design may rely on protection under the Copyright Ordinance (Cap. 528) to protect artistic works or design drawings. Copyright protection for such unregistered designs subsists for a period of 15 years. Brand owners should maintain records of drafts, the date and place of creation, and the identity of the author, as such evidence will be required to establish ownership in any dispute.
In urgent matters, brand owners can seek interlocutory (preliminary) injunctions from the Hong Kong courts to stop the infringer from making, importing, offering, and/or exposing for sale the lookalike products pending a full trial. To obtain such relief, the claimant must prove that there is a serious question to be tried and that the balance of convenience favours the applicant. Both registered designs and copyright therefore provide effective and additional avenues for seeking interlocutory relief, and should be considered alongside registered trade marks as part of a strategy for retail and consumer brands tackling lookalikes in Hong Kong.
What should you consider next?
It’s clear that there are many routes available to brands to protect their products against lookalikes around the world. The success of a claim will depend on the particular features in question, the availability of evidence to prove infringement and the extent of alleged copying.
Designing the best enforcement strategy will require:
- a robust trade mark and design filing program;
- good record keeping of unregistered right subsistence and ownership;
- effective monitoring of the market and early action against potential infringers; and
- having an international perspective to take action where the chances of success are highest, and maximum pressure can be exerted.
For further information, please contact:
Louise Sargeant, Partner, Bird & Bird
