My Lords, it has long been my ambition to appear on the screen in two different places, but I think that is impossible. I have been looking to see whether other members of my family might appear on the screen at the same time. We have not achieved that. We do not set out to do that but it would be nice if it happened.
Amendment 28A deals with the long-standing problem of lookalikes: products that are designed to look like well known branded products, with the intention—certainly the effect—of confusing the customer. For me, this is a very familiar problem. Many years ago I worked for what was then the Distillers Company, which had a number of very famous brands of spirits. It had a museum of lookalikes containing literally hundreds of bottles from all over the world that had been specifically designed to make them look like some of the Distillers Company’s well known brands, on which of course it had spent a great deal of money on advertising and had built up a very strong brand loyalty. One that I always remember looked exactly like a bottle of White Horse whisky until you looked very closely and saw that it was not a horse but an elephant. But from the other side of the bar you could not have possibly told the difference. There was another bottle of whisky that had “Scotland” in very large words on it and if you looked at it very closely, it said, “Label printed in Scotland”. There were hundreds of others.
This is not the first occasion that this subject has been raised in this House. On 24 February 1994, my late friend Lord Reay tabled an amendment during the passage of the Trade Marks Act about what he called unfair competition. I spoke in that debate, as did a number of other noble Lords. My noble friend Lord Strathclyde, who was then the Minister, recognised the problem but proposed no action. On 17 March 2000, we had the Second Reading of a Private Member’s Bill presented by my noble friend Lord McNally, the Copyright, etc. and Trade Marks (Offences and Enforcement) Bill, which was specifically directed at this problem of lookalikes. In the end he was persuaded to withdraw the Bill so nothing was done.
I have here—and I have no doubt other noble Lords will have seen similar things—a whole collection of what is sometimes called parasitic copying. Brands of margarine have a different word on the top but they look exactly like the very well known brands that are advertised by companies. There are shampoos, shower creams and lotions—all these things are well known. There is plenty of evidence that they do mislead consumers. My wife is a very careful shopper but on one or two occasions in the past few years she has been misled and come back home and said, “Oh, that is not what I meant to buy”, but it looked exactly like the one that she did mean to.
4.45 pm
The question of misleading consumers is at the heart of this. These products are simply cashing in on the branded product’s reputation and selling the copycat product at a lower price. The professional word that is used for that is “parasitic” copying. Why does it persist? It is, in fact, a form of cheating, yet it is widespread
and this country does not seem to be as good at dealing with it as some of our neighbours. Why is it that successive Governments in this country have signally failed to deal with it? Why does it appear that the branded product owners have no remedy and can take no action? I will explain that in a moment.
Sometimes it is pointed out that there are registered IP rights, yet the law of passing off, which is a long-standing common law remedy, has proved ineffective in dealing with the problem. In 2006, the Gowers Review of Intellectual Property concluded that brands were not well protected against what it described as “misappropriation”. A shorter word for that is stealing. It recommended that the unfair commercial practices directive of the European Union be monitored and if it were,
“found to be ineffective, Government should consult on appropriate changes”.
Therefore, the consumer protection regulations, which implemented the directive, were introduced in 2008. However, despite strong lobbying from the interests representing brand owners, enforcement of the directive was restricted entirely to the Office of Fair Trading and trading standards. There was no remedy for those who had been wronged. Companies were not granted civil rights of action. What about the OFT and trading standards? They had a pretty regular answer: they argued that they did not have the resources to enforce the consumer protection regulations and that the matter did not have sufficient priority. One can understand that given their duties in relation to childcare, adultcare, education and all the rest of it, and the priorities they must establish in those areas. This situation arose despite the Government telling brand owners that the Government had a duty of enforcement. When I studied law at Cambridge a long time ago, I discovered a very good Latin slogan, which I shall repeat although it may be out of order to do so. The slogan was “ubi remedium ibi jus”: where there is a remedy, that is where the law is. If there is no remedy, there is absolutely no use having a law. The regulations constitute the law, but nobody enforces them.
The previous Government promised a review after two years. However, there has been, as yet, no review. The regulations have so far proven singularly ineffective in tackling the copying of package designs and all the rest, which is why I and my noble friend Lord Clement-Jones have tabled this amendment. This is an opportunity for the coalition Government to put right a very long-standing and manifest abuse in our trading system.
Amendment 28A forbids parasitic copying and would give branded product manufacturers a civil right to sue for an injunction and, if appropriate, claim damages from those who have set out deliberately to imitate their products with a view to misleading consumers. This reform is long overdue. I beg to move.