Retailers who sell their own brands of goods must refrain from creating packaging that imitates major brands following a ruling of the European Court of Justice (ECJ) and reported by Pinsent Masons’ Out-Law.com news service.

Europe’s top court has said that packaging will infringe trademark rights when it mimics major brand packaging and gains an advantage by it. The ECJ said that this was the case even if consumers were not confused into thinking that the goods came from the major brand.

Iain Connor, an intellectual property lawyer at Pinsent Masons, said that the ruling means that any business that makes store brand goods needs to reassess its packaging designs.

“This is an important ruling which means that if someone has a packaging trade mark for a leading brand and somebody else produces look-a-like packaging that intentionally imitates it, it will be found to be taking unfair advantage of that leading brand, which is outlawed,” said Connor. “In terms of own brand products it could have huge implications.”

The case involved L’Oréal and three companies involved in the creation and sale of perfumes which were marketed as “smell-a-likes.” The perfumes’ packaging imitated L’Oréal’s and were sold according to lists of the L’Oréal fragrances which they smelled like.

The ECJ had to rule on whether making product packaging look similar to trade marked packaging counted as “taking unfair advantage” of a trademark, and therefore as trademark infringement. It said it did.

“Where a third party attempts, through the use of a sign similar to a mark with a reputation, to ride on the coat-tails of that mark in order to benefit from its power of attraction, its reputation and its prestige…the advantage resulting from such use must be considered to be an advantage that has been unfairly taken of the distinctive character or the repute of that mark,” its ruling said.