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After a few drinks, perhaps they do look alike

By Johanna Gibson, David Pearce, Jeremy Phillips and Ilanah Simon.

Now that the temperature in England has soared to fresh and unexpected summer heights, the IPKat's readers have turned their thoughts once again to drink. This is presumably why the Kat's email in-tray is now piled high with requests for him to cover the dispute between two giants -- Diageo and Sainsbury's -- over Diageo's popular Pimm's product, a drink that is consumed as though it were a fruit salad.

According to the Daily Mail, MarketWatch and BrandRepublic, Diageo is suing Sainsbury's for copyright infringement. The IPKat is a little surprised, since he didn't immediately spot anything other than the rounded hump at the top of the label. The Mail says:

"The deep red colour is the same. The red lettering and shape of the bottle is
the same. The fact it can be added to lemonade with fruit is the same. Even the
name - Pitchers - is similar".

That may well be, but the Kat would have preferred something he could point to with greater confidence when addressing the judge and seeking to convince him that there had been a copying of a substantial part of whatever the original work is. English case law could do with some tidying up with regard to the extent to which original products are protected against lookalikes. However, it would be extraordinary (in his humble but personal opinion) if Diageo were to succeed on these facts while apparently stronger cases of lookalikes could not be protected on the facts of Whirlpool v Kenwood and Procter & Gamble v Reckitt Benckiser).

Merpel says, were it not for the fact that all the papers call it a copyright infringement, I might have guessed it was a claim for trade mark infrgingement or passing off (which is what several of the Kat's email correspondents wrote too). But given the difficulty of registering product shapes and label shapes as trade marks, and the difficulty of enforcing them against similar-looking competitors, perhaps copyright is a better bet. Tufty notes that Diageo has affirmed its commitment to keep on trading with Sainsbury's, which will continue to sell other Diageo lines:

"It would be inappropriate for us to comment further other than to say that
Sainsbury's is a valued customer of Diageo".

Sainsbury's has indicated that it will vigorously resist Diageo's claims.

The last word here comes from the pocket-calculator-wielding Trevor of Perth, posting a comment on the Daily Mail article:

"They do not look the same bottles, lettering or anything else. And just for the
record! The Sainsbury's brand (Usually the cheaper option) is MORE expensive. At
£10.79 for 70cl it equates to £15.41 per Litre A whole £1.41 MORE than the
Pimm's brand! Why shold Diageo be worried I always but the cheaper option!!"

What the experts say (or are quoted as saying) in Marketing Week here
Pimm's history here (needs a clean-up)
Pimm's PinPom here

Full post as published by IPKat on August 19, 2009 (boomark / email).