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Packaging injunction against a copycat

Media Release

30 August 2011

Packaging injunction against a copycat

New Zealand’s Big BlakSaks has won an injunction against D & A Marketing's 4U copycat black rubbish bags last week for passing off and breaching the Fair Trading Act.

These everyday products are a household staple, but inspired a court battle over their packaging.

Big BlakSaks has been in the market for over 30 years with the same format of black rubbish bags and objected strongly to the very similar look of the newly re-packaged 4U bags.

D & A Marketing's 4U bags had very similar product names, colours, artwork, packaging, and other features copied from Big BlakSaks. The High Court agreed that “even when the products are inter-mingled, it is not obvious they are from different suppliers.”

The High Court Judge commented that most of D & A Marketing's packaging in respect of 4U Drawstring 5s, 4U Handle 5s and 4U Cost Less 5s was “seriously arguably deliberately calculated to mislead consumers.”

The Judge also accepted that there was a quality issue with D & A Marketing's products, which could be damaging to the good reputation of Big BlakSaks.

Jenni Rutter of Kensington Swan, Legal Counsel for Big BlakSaks says “it's unusual to see such close copying of packaging. It should be reassuring for New Zealand businesses that simple packaging features combined in a unique way will be protected by the courts.”

Big BlakSaks says D & A Marketing got caught copying, and believes supermarkets will welcome this court decision, because the stores would not want their customers to be confused, or misled into purchasing the wrong product by mistake.


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