Hypocrite of the Year Award

I must admit when thinking of someone who might be outraged about rivals using the colour and shape of other brands on a similar product Lidl, was not the first company that came to mind.

The Times newspaper reported on 14th June that a judge was allowing a case to go to court as Lidl claims “the yellow circle with red border on the blue background is a “wordless” trademark even without the Lidl name on it and is seeking to ban Tesco from using a similar background on their “Clubcard Prices” signs at their stores. It said Tesco is “seeking deliberately to ride on the coat-tails of Lidl’s reputation as a ‘discounter’” by using the background to the Lidl logo to promote its price?cuts. https://www.thetimes.co.uk/article/tesco-accused-of-ripping-off-lidl-logo-tb6m5mtnh

This caused much amusement when I talked this with business colleagues so I thought I would cover a few of the issues from my own perspective as someone who runs training programmes on how to influence shopper behaviour.

Shopper’s search mechanisms in-store work primarily by using a simple scan to find the relevant colour and shapes of the products they seek to buy before either just popping them in the basket or doing a comparison across a few relevant options located in the same area. Because the search is colour and shape based, the brain considers items with the target colour and shape and inclusion is more likely if the exact same colours and shapes are used e.g. same Pantone colours. Parasitic copying works because the limited visual images in the long-term memory are mimicked and this is all the brain can be bothered to use.

So, I do not see how Tesco can be accused of using Lidl’s trademark when the shade of blue and the shade of yellow are very different with Tesco continuing to use the Pantone colour of Blue and Yellow they have used instore for years. Had they wanted to fool the brain’s long- term memory into associating with Lidl they would have used the exact same colours, the red outline to the circle and used blue and red letters to spell out:

By giving shoppers colouring pencils, the colours and shapes a brand or logo visually owns can be determined quite quickly. For example, if asked to draw Head and Shoulders these are examples of what they draw. Head and Shoulders visually owns only a white curved bottle with a blue cap as shopper memory of anything else is indistinct. Asking shoppers to draw Tesco Clubcard and the Lidl logo I think would get quite different drawings with little confusion, especially if a wide enough pallet of yellow and blue pencils were provided.

It also seemed a little strange to think that Tesco would be so subtle as to hope that shoppers would associate Clubcard prices with Lidl prices just by a circle association if used instore (especially as Lidl don’t tend to use the Lidl name and circle inside their own stores, only outside). When Tesco compare prices to a discounter they label it “Aldi Price Match” and make it obvious in-store and online with specialist point of sale. Not only is Tesco not comparing to Lidl, they are actively choosing not to compare to them and compare to Aldi instead. Perhaps Lidl is feeling left out that no-one is comparing to them as Sainsbury also does “Aldi Price Match”.

There are times when the use of similar colour and shapes has caused confusion in stores so I have set out a few examples I found when I was in Lidl yesterday that confused me personally and I had to look twice to realise it was a private label and not a well-known brand (the national brand is the one on the left if you are confused). I would love to know what the packaging brief was to the design agency who created these private label products?

I also found similarities between private label sold in Lidl and national brands not sold in Lidl but sold in other retailers (the national brands are sometimes in the middle)

Research by Steenkamp (2014) showed brands performed better when copycatting was low so these actions have a cost so I can understand Lidl’s concern that their logo is not misused.

A UK Intellectual Property Office study (2013) helped to explain why:

• Consumers are more likely to make mistaken purchases if the packaging of products is similar.
• They found strong evidence that consumers in substantial numbers have made mistakes.
• Consumer perception of the similarity of packaging are correlated with an increased perception of common origin.
• Consumer perception of similarity of packaging increases their perceptions of quality and their propensity to buy.

When I was last in Denmark I took this picture on the left in a Lidl of a comparison they had chosen to make between their own brand and a well-known international brand. I wonder if brands would be allowed to put up the alternative sign I made on the right in a Lidl store? (I apologise to Nestle for my terrible copywriting skills and made up claim).

The reason I ask this question is that in 2017 the EU’s general court fined Google 2.42 billion Euros with the following ruling:

“The General Court finds that, by favouring its own comparison shopping service on its general results pages through more favourable display and positioning, while relegating the results from competing comparison services in those pages by means of ranking algorithms, Google departed from competition on the merits”?

Do retailers not have a similar responsibility to allow fair competition within the estate that they control?

When I first read of the Lidl court case against Tesco it reminded me of a well-known English phrase “people in glass houses should not throw stones”.

If you would like help on understanding what drives shopper behaviour and the choices they make, get in touch to learn about my shopper psychology or claims courses or how I can help you with your packaging through my consultancy work.

For research on how shoppers rely on colour and shape, see research from Acuity Intelligence commissioned by the British Brands Group. The Group, with IP Together, has also produced a checklist to help SMEs protect themselves.