Trollope and Novati are considering their legal options, but their expectations of seeing any meaningful recompense are low, pointing to previous legal action that has been brought against Aldi – including US snack food giant Frito-Lay over “Cheezy Twists” (Twisties) and beauty company Morrocanoil in which the German supermarket has emerged relatively unscathed.
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“Knowing Aldi’s one of the big guys, we sort of went, what do you do?” Trollope said.
Trademark attorney and Flatoutbear’s lawyer Len Mancini, from IP Solved, has more hope. He points to potential copyright, consumer law and trademark infringements by the copycat item, which is labelled “Flat bear” on the packaging.
“‘Flat bear’ is a term [that] really came into use since Prue and Sarah put their flat-out bears onto the market. It is not a term which was being used forever and a day to describe these sorts of teddy bears,” he said. “In our view, it’s an infringement of the registered trademark ‘Flatoutbear’.”
He also pointed to an illustration at the back the packaging of Aldi’s “Flat bear” that bears resemblance to the illustrations printed on Flatoutbear’s cotton jersey baby wrap. “It is a reproduction,” Mancini said. “Whilst they have redrawn it and moved the ribbon, they have reproduced aspects of that artistic work, an artistic work which has got copyright. So that was very silly of them.”
Prue Trollope and Sarah Novati compare their bear with ‘Flat bear’ by Snugtime, sold at Aldi.Credit: Edwina Pickles
All this could lead to confusion among consumers, which Australian IP laws are geared towards preventing, and potentially detract from Flatoutbear’s goodwill and reputation, he said.
“What dupers tend to like to do is basically operate in that area where it’s a distinctive feature of a product but it hasn’t been registered, which makes it a lot easier to borrow, for want of a better word,” said Mancini.
Aldi declined to respond to questions about the product, which was sold in Aldi on June 11 as a “special buy” item. C Stuart, the manufacturer behind the Snugtime product sold at Aldi, did not respond to requests for comment. The item was not made exclusively for Aldi but does not appear on Snugtime’s website.
‘It is the era of dupes’: IP lawyer’s warning
Business owners and inventors in Australia and around the globe are facing the growing problem of their creations being reproduced by any retailer or manufacturer around the world.
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Consumer demand and acceptance of “dupes” has helped retailers such as Aldi, Kmart and “luxe for less” make-up and skincare business MCoBeauty build successful business models on finding items that are trending on social media and selling them at a lower price. A wave of new brands has been founded on the premise of delivering luxury perfume or skincare, for instance, at lower price points.
The business name, Flatoutbear, is a registered trademark, as well as its round logo. But other distinctive features, such as the bear’s shape and the black neck ribbon, are not.
“In today’s environment where there is a very active duping culture, you’ve got to make sure that your actual products themselves have some level of protection,” Mancini said.
He urged business owners and inventors to visit or revisit their “IP position” every five years to check if some products have become recognised for certain distinctive features that can be registered as a trademark.
IP lawyers are engaging with clients from both sides of the fence. Mancini acts for small business owners such as Trollope and Novati as well as major retail brands such as MCoBeauty. “It is the era of dupes.”
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