Originally posted 2012-12-23 08:00:13. Republished by Blog Post Promoter
First posted March 6, 2012.
Private-label branding is a huge topic, and a very interesting one. I wrote a huge post about it here, focusing on Hellman’s (or, for you westerners, Best Foods) mayonnaise lookalikes. The question is: How close to a famous brand’s trade dress (which may in and of itself be protected by trademark) can a “store brand” or private label package get before there’s a plausible argument for unfair competition base on consumer confusion? Here (above) is a cute video I even found on this topic, via this Australian website. It’s a hot issue, and Rebecca Tushnet probably wrote up the best blog treatment of it.
Now, the premise of the question itself is that the private label product is a generic or low-grade-branded (I just made up that phrase) offering that is less expensive but which consists of the same fundamental features as the “famous brand.” The consumer is invited to “compare” the two products, which typically have the same active ingredients, but often differ in material respects – mainly the price. As Rebecca explained:
The [McNeil Nutritionals, LLC v. Heartland Sweeteners, LLC] opinion began by noting that, in 2005, private label products accounted for 20% of all US supermarket, drugstore, and mass merchandiser sales, or $50 billion. At that time, more than 90% of consumers were familiar with store brands, and almost as many bought them regularly. Such brands are typically found next to the coordinate national brands, and their packaging often invites comparison with a national brand, whether by similarity in dress or by “compare to” statements. Shelf tags also explicitly invite comparisons. The court accepted as fact that consumers are generally aware that private label products are sold next to national brands, and that prominent price displays allow consumers to see the cost differences between them.
So the consumer “gets” the concept of the private label, expects the private label product to be compared to the famous brand, and makes a choice.