Detectives at the supermarket: watch out for repellent brands.
Lately, buying repellent or any other product to fight mosquitoes has become unavoidable. That is why, while comparing prices, we came across this “coincidence”: there are two almost identical repellent products. One is the brand everyone knows best, Off repellent, and the other is the Escudo brand. Maybe you know it because you saw it as the first option. So, what happens legally when it comes to branding and “plagiarism”? We explain below.
When two products are strikingly similar, consumers have a hard time telling them apart. This can lead them to buy one brand’s product inadvertently, thinking it is another’s. Who is responsible for this? Intellectual property law provides safeguards to prevent confusion in the marketplace caused by companies offering similar goods or services.
In this case, the example we will look at is the “Off” and “Escudo” repellents, two products that, at first glance on the supermarket shelf, look exactly the same — especially if you are in a hurry doing your shopping.
Can you tell the two repellent brands apart at a glance?
Speaking with us, Nicolás Eguía, assistant to the management at EGUÍA Marcas y Patentes, explains: “The similarity between two trademarks does not necessarily mean that one is imitating the other. Both ‘Escudo’ and ‘Off’ are registered in Argentina, each with its own logos and in compliance with current legislation. It even seems that both brands accept each other’s coexistence, and they might share the same manufacturer, although that is difficult to confirm. So, at first sight, there does not seem to be a conflict.”
What makes this case interesting?
The confusion does not come from their names or logos, but from the packaging the product comes in. So much so that the first thing you see is a family with children on an orange background with a red cap. So doesn’t the law have a way to protect each brand’s packaging?
Eguía explains: “As in most cases, our legislation is influenced by the Anglo-Saxon tradition, and from it comes the term ‘trade dress,’ which gives brands broader protection than just the name or logo. Trade dress is used especially to protect packaging, premises, and so on, where a product is sold. Think of how a McDonald’s restaurant, for example, is recognizable without seeing its logo because of the look of its chairs and tables. Off’s packaging could also be protected this way, based on the overall look of its packaging.”
Moreover, although Argentine legislation has not yet incorporated these legal concepts, judges do apply them on a supplementary basis when protecting a trademark and, above all, the consumer. This shows that our case law is ahead of the rest of the region, where other countries do not yet recognize this broad form of trademark protection.
“This phenomenon of trademark confusion has clear winners and losers. The lesser-known brand can capitalize on the recognition of the more established one, increasing its sales thanks to the confusion. The lower prices of these products often add to their appeal as well. On the other hand, the better-known brand is the one most affected, as the value and position it has worked hard to build are compromised,” concludes Nicolás Eguía.
Intellectual property blog
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