# Trademarks and obious knock-offs **URL:** \ **Category:** Factual Questions\ **Created:** [September 19, 2016, 2:38pm UTC](https://boards.straightdope.com/t/trademarks-and-obious-knock-offs/766347 "2016-09-19T14:38:08Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Mr\_Shine](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mr_shine/32/464_2.png) [@Mr\_Shine](https://boards.straightdope.com/u/Mr_Shine)\ **Post date:** [September 19, 2016, 2:38pm UTC](https://boards.straightdope.com/t/trademarks-and-obious-knock-offs/766347/1 "2016-09-19T14:38:08Z")
There’s a popular brand of soft drink in the UK called “Irn-Bru”. Several supermarkets sell a virtually identical own brand drink and call it “Iron Brew” in a flagrant attempt to cash in on Irn-Bru’s popularity. There are thousands of very similar examples of products who have build up a brand with competitors who clearly mock them with their title. What exactly is the law on this? Not necessarily UK law as it’s a general query with no practical purpose. ---
**Author:** ![PatrickLondon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/patricklondon/32/4422_2.png) [@PatrickLondon](https://boards.straightdope.com/u/PatrickLondon)\ **Post date:** [September 19, 2016, 2:47pm UTC](https://boards.straightdope.com/t/trademarks-and-obious-knock-offs/766347/2 "2016-09-19T14:47:50Z")
Well it will vary with jurisdictions, I shouldn’t wonder, as to what is (in terms of UK law) “passing off” as another product, or sincere imitation that is clearly not actually the original. I’ve certainly been to markets overseas where you can get “genuine fake” Cartier watches that will stop working after a few weeks (and probably leave you with a rash on your wrist into the bargain) - everyone knows they aren’t genuine Cartier, so they’re not taking their market: but is it in some way injuring their brand image and therefore affecting their market, or is it flattery by imitation? Don’t discount the possibility that, in the example you give, it might be the kind of supermarket “own brand” that is in fact pretty much the same product rebranded, made by the same manufacturer but not openly sold as a reduced price promotion? That way the producer increases turnover that is hoped to compensate for any knock to the sales or the image of their original product - indeed, I have noticed some “own brands” only appearing in the supermarket for a short time, no doubt as a quid pro quo for pushing the “premium” (but identical) product the rest of the time. Or maybe the supermarket makes it a condition of stocking any of the product that some of it has to be available under the “own brand” label at a reduced price. ---
**Author:** ![engineer\_comp\_geek](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/engineer_comp_geek/32/504_2.png) [@engineer\_comp\_geek](https://boards.straightdope.com/u/engineer_comp_geek)\ **Post date:** [September 19, 2016, 2:49pm UTC](https://boards.straightdope.com/t/trademarks-and-obious-knock-offs/766347/3 "2016-09-19T14:49:35Z")
It’s called “confusing similarity” and can be considered a trademark infringement. More info here: > **[Confusing similarity](https://en.wikipedia.org/wiki/Confusing_similarity)** > > In trademark law, confusing similarity is a test used during the examination process to determine whether a trademark conflicts with another, earlier mark, and also in trademark infringement proceedings to determine whether the use of a mark infringes a registered trademark. > In many jurisdictions this test has been superseded by the concepts of similarity and likelihood of confusion, due to the harmonizing effects of the Agreement on Trade-Related Aspects of Intellectual Property Rights. > Where ... ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [September 19, 2016, 2:54pm UTC](https://boards.straightdope.com/t/trademarks-and-obious-knock-offs/766347/4 "2016-09-19T14:54:55Z")
In the US, it’s a trademark violation if they’re competing in the same market and there’s a reasonable possibility of confusion, and the trademark owner can sue over it. How close a name, logo, or whatever can get before there’s a “reasonable possibility of confusion” is, of course, a matter for the courts to decide. Note, by the way, that one condition of holding a trademark is that you have to defend it. This is why, for instance, you’ll hear of Disney sending cease-and-desist letters to daycares with Disney characters painted on the walls: They’re defending their trademark. If they didn’t, then the trademark would lapse. ---
**Author:** ![jtur88](https://avatars.discourse-cdn.com/v4/letter/j/e9c0ed/32.png) [@jtur88](https://boards.straightdope.com/u/jtur88)\ **Post date:** [September 19, 2016, 3:14pm UTC](https://boards.straightdope.com/t/trademarks-and-obious-knock-offs/766347/5 "2016-09-19T15:14:11Z")
Courts frequently use the “reasonable person” doctrine, to judge whether a statement might be misleading or not. One example is the motel sign that says “free breakfast”. A reasonable person would understand that that applies to paying guests only, and not anybody passing by on the highway. The third world is full of these kinds of knockoffs. I recently saw batteries in Manila with the brand name, in suspiciously familiar font, “SQMY” ---
**Author:** ![Shakester](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/shakester/32/437_2.png) [@Shakester](https://boards.straightdope.com/u/Shakester)\ **Post date:** [September 19, 2016, 3:38pm UTC](https://boards.straightdope.com/t/trademarks-and-obious-knock-offs/766347/6 "2016-09-19T15:38:50Z")
I have a pair of underpants (bought from China via eBay) whose waistband proudly proclaims the name **Calin Kasen**. Another variation I’ve seen is **Calves Kelson**. I do think it’s a shame no one has adopted **Colin Klone** as their brandname, though. Missed opportunity. I’m happy to own a pair of those for amusement value (and they’re decent underwear) for a mere $5. I wouldn’t pay $50 for authentic CKs that are no better in quality and most likely made in the next sweatshop along. Or the same one. CK doesn’t seem to be shutting down the many eBay and Amazon sellers that are selling this stuff. I’m sure the Chinese makers/sellers wouldn’t give a hoot about a cease and desist letter, but you’d think eBay and Amazon would. I suppose the argument is that no one in an English speaking country would be fooled into thinking they were buying genuine CKs. ---
**Author:** ![Jackmannii](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jackmannii/32/311_2.png) [@Jackmannii](https://boards.straightdope.com/u/Jackmannii)\ **Post date:** [September 20, 2016, 12:23pm UTC](https://boards.straightdope.com/t/trademarks-and-obious-knock-offs/766347/7 "2016-09-20T12:23:20Z")
For a (mercifully brief) time I lived in Syracuse, N.Y., where there was a hamburger joint that got into a hassle with Burger King. It seems that the owner had been in business for many years, selling a giant burger he called the “Whopper”. Then BK came along and trademarked the name, found out this guy was selling his burger and instituted legal action to stop him from selling it under that name. So he changed it to “The Vopper”. Apparently BK didn’t bother pursuing it further, which would have made them look ridiculous anyway (as if someone stopping into this restaurant would confuse it with Burger King). \*although BK has been fighting trademark infringement cases [in India](http://articles.economictimes.indiatimes.com/2015-11-26/news/68582111_1_trademark-cases-court-cases-delhi-high-court), one involving a chain of _vegetarian_ restaurants inexplicably named “Burger King”. ---
**Author:** ![Amateur\_Barbarian](https://avatars.discourse-cdn.com/v4/letter/a/59ef9b/32.png) [@Amateur\_Barbarian](https://boards.straightdope.com/u/Amateur_Barbarian)\ **Post date:** [September 20, 2016, 3:04pm UTC](https://boards.straightdope.com/t/trademarks-and-obious-knock-offs/766347/8 "2016-09-20T15:04:00Z")
> [@jtur88](#): > > The third world is full of these kinds of knockoffs. I recently saw batteries in Manila with the brand name, in suspiciously familiar font, “SQMY” Years ago, I used to visit a huge weekend flea market with regularity. My interest at the time was cheap automotive audio, so I was familiar with the offerings of the many booths selling such stuff. One-quarter of the both would be cheap name brands, usually in damaged boxes. Of the rest, maybe half would be Asian no-name stuff - “Roaring Dragon” and “Hot Tiger” sort of branding. And the remainder would be just this kind of close knockoff from Clarrion and SQNY and Elpine and the like. Not sure if that stuff can make it into the country any more. ---
**Author:** ![markn\_1](https://avatars.discourse-cdn.com/v4/letter/m/f9ae1b/32.png) [@markn\_1](https://boards.straightdope.com/u/markn_1)\ **Post date:** [September 20, 2016, 4:26pm UTC](https://boards.straightdope.com/t/trademarks-and-obious-knock-offs/766347/9 "2016-09-20T16:26:58Z")
There was a coffee shop in my town named McCoffee. They used that name for 17 years, until McDonalds told them to knock it off. I never understood that; I don’t see any possibility of confusion between those names. Is McDonalds asserting trademark over any name that starts with “Mc”? The coffee shop changed their name to “M Coffee”. –Mark ---
**Author:** ![beagledave](https://avatars.discourse-cdn.com/v4/letter/b/6de8d8/32.png) [@beagledave](https://boards.straightdope.com/u/beagledave)\ **Post date:** [September 20, 2016, 4:34pm UTC](https://boards.straightdope.com/t/trademarks-and-obious-knock-offs/766347/10 "2016-09-20T16:34:37Z")
So are obvious [clones](http://www4.stat.ncsu.edu/~bmasmith/drpepper.html) violations? If so, why do they still exist? ---
**Author:** ![ftg](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ftg/32/2801_2.png) [@ftg](https://boards.straightdope.com/u/ftg)\ **Post date:** [September 20, 2016, 4:40pm UTC](https://boards.straightdope.com/t/trademarks-and-obious-knock-offs/766347/11 "2016-09-20T16:40:14Z")
One confounding factor is cases like the OP is that maybe there was already a well known _type_ of beverage called “Iron Brew” and the “Irn-Bru” product is the new brand. It’s common to do such odd spellings when the original term is already generic. And therefore they can’t stop people selling products under the original name. ---
**Author:** ![Alley\_Dweller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/alley_dweller/32/430_2.png) [@Alley\_Dweller](https://boards.straightdope.com/u/Alley_Dweller)\ **Post date:** [September 20, 2016, 4:45pm UTC](https://boards.straightdope.com/t/trademarks-and-obious-knock-offs/766347/12 "2016-09-20T16:45:58Z")
> [@markn\_1](#): > > Is McDonalds asserting trademark over any name that starts with “Mc”? Funny you should ask. McDonald’s recently won a case in the EU General Court against a company that tried to register the trademark MACCOFFEE. > [@](#): > > “The repute of McDonald’s trade marks makes it possible to prevent the registration, for foods or beverages, of trade marks combining the prefix ‘Mac’ or ‘Mc’ with the name of a foodstuff or beverage,” judges said. [Source.](http://fortune.com/2016/07/05/mcdonalds-trademark-lawsuit-mc-mac/) And there is also the fact that most small businesses cannot afford the legal expenses involved in fighting McDonalds. ---
**Author:** ![engineer\_comp\_geek](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/engineer_comp_geek/32/504_2.png) [@engineer\_comp\_geek](https://boards.straightdope.com/u/engineer_comp_geek)\ **Post date:** [September 20, 2016, 4:56pm UTC](https://boards.straightdope.com/t/trademarks-and-obious-knock-offs/766347/13 "2016-09-20T16:56:07Z")
> [@beagledave](#): > > So are obvious [clones](http://www4.stat.ncsu.edu/~bmasmith/drpepper.html) violations? If so, why do they still exist? Those are usually cheap imitations, and the people buying them know that they are cheap knock-offs and aren’t confusing them for the real brand. For example, if you buy Dr. Thunder, you know that it’s the cheap Walmart version of Dr. Pepper and you know that it doesn’t taste quite the same, just close enough and a lot cheaper. Walmart also sells Dr. Thunder grouped in with its other generic clones so it’s really obvious that you are buying a generic type alternative and not the real thing. You can sell a cheap knock-off as long as it is clear that it is a cheap knock-off. If you sold Dr. Popper with a confusingly similar font and similar can design, so that it would be difficult to tell if it’s Pepper or Popper unless you looked really closely, that would be a trademark violation. ---
**Author:** ![Driver8](https://avatars.discourse-cdn.com/v4/letter/d/b5a626/32.png) [@Driver8](https://boards.straightdope.com/u/Driver8)\ **Post date:** [September 20, 2016, 5:14pm UTC](https://boards.straightdope.com/t/trademarks-and-obious-knock-offs/766347/14 "2016-09-20T17:14:09Z")
I don’t know what the related law was in South Africa, but I’m pretty sure trademark law exists in a recognizable form. That said, there was a brand of chocolate biscuits called “Romany Creams”. I always wondered why the cheap knockoff, a similar looking biscuit in similar looking packing named “Romantic Dreams”, got away with it. Not quite the same thing, but related, South Africa at the time (I’m not sure about now) had restrictions on competitive advertising where you typically couldn’t compare yourself to a named competitor in the advertisement. This led to a pretty famous local advertisement spat between Mercedes and BMW, with a Mercedes plunging down a cliff with no driver injuries to demonstrate their safety and a follow up BMW advertisement with the car successfully navigating the road (along with the tag line “beats the bends”): [“Beat the Bends” BMW vs MERCEDES: A case for comparative advertising](http://blogs.ubc.ca/chrisannekouzas/2010/10/12/%E2%80%9Cbeat-the-bends%E2%80%9D-bmw-vs-mercedes-a-case-for-comparative-advertising/). ---
**Author:** ![jnglmassiv](https://avatars.discourse-cdn.com/v4/letter/j/f07891/32.png) [@jnglmassiv](https://boards.straightdope.com/u/jnglmassiv)\ **Post date:** [September 20, 2016, 7:18pm UTC](https://boards.straightdope.com/t/trademarks-and-obious-knock-offs/766347/15 "2016-09-20T19:18:06Z")
> [@Amateur\_Barbarian](#): > > My interest at the time was cheap automotive audio, so I was familiar with the offerings of the many booths selling such stuff. That reminds me. Two better known names in automotive audio are Rockford Fosgate and Kenwood. There are ‘alternative brands’ with amusing mashup names like Kenford and Rockwood. ---
**Author:** ![CookingWithGas](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cookingwithgas/32/485_2.png) [@CookingWithGas](https://boards.straightdope.com/u/CookingWithGas)\ **Post date:** [September 20, 2016, 7:49pm UTC](https://boards.straightdope.com/t/trademarks-and-obious-knock-offs/766347/16 "2016-09-20T19:49:46Z")
There are lots of store brand products that use packaging similar in style and colors to a name brand product that they want to imitate. I do not think they are trying to make anyone think that their store brand is actually the name brand, but they are trying to obviously signal, “Hey this laundry detergent cheery red bottle is exactly the same color as Tide so it is also exactly the same quality and a lot cheaper!” In OTC drugs the store brand package often goes far as to say “Allergy Medicine–Compare to Claritin”. I am not sure how they stay on this side of trademark infringement but this is a very common practice in U.S. grocery stores and pharmacies. ---
**Author:** ![Dinsdale](https://avatars.discourse-cdn.com/v4/letter/d/97f17d/32.png) [@Dinsdale](https://boards.straightdope.com/u/Dinsdale)\ **Post date:** [September 20, 2016, 7:58pm UTC](https://boards.straightdope.com/t/trademarks-and-obious-knock-offs/766347/17 "2016-09-20T19:58:31Z")
> [@CookingWithGas](#): > > There are lots of store brand products that use packaging similar in style and colors to a name brand product that they want to imitate. I’ve only been to Aldi (discount grocery) a couple of times, but when I went I was surprised at how many knock offs that had in packaging similar to the original. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [September 20, 2016, 9:16pm UTC](https://boards.straightdope.com/t/trademarks-and-obious-knock-offs/766347/18 "2016-09-20T21:16:58Z")
There was a case in Britain I recall reading about - I think it was Virgin Cola? The typeface was distinctively similar and the can was red with a white stripe. the judge said it was close enough to cause confusion. ---
**Author:** ![LH75](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lh75/32/4438_2.png) [@LH75](https://boards.straightdope.com/u/LH75)\ **Post date:** [September 21, 2016, 7:54pm UTC](https://boards.straightdope.com/t/trademarks-and-obious-knock-offs/766347/19 "2016-09-21T19:54:22Z")
> [@Jackmannii](#): > > For a (mercifully brief) time I lived in Syracuse, N.Y., where there was a hamburger joint that got into a hassle with Burger King. > > It seems that the owner had been in business for many years, selling a giant burger he called the “Whopper”. Then BK came along and trademarked the name, found out this guy was selling his burger and instituted legal action to stop him from selling it under that name. > > So he changed it to “The Vopper”. > > Apparently BK didn’t bother pursuing it further, which would have made them look ridiculous anyway (as if someone stopping into this restaurant would confuse it with Burger King). > > \*although BK has been fighting trademark infringement cases [in India](http://articles.economictimes.indiatimes.com/2015-11-26/news/68582111_1_trademark-cases-court-cases-delhi-high-court), one involving a chain of _vegetarian_ restaurants inexplicably named “Burger King”. There was a local drive in restaurant (no dining area, car service only) here that was called Mac’s. I was started in the very early fifties. They had a burger called, of course, The Big Mac. It was delicious. When MacDonald’s started serving their Big Mac, the guy who owned that little place sued. He got a hefty settlement. He expanded his place to include a dining room and a bigger kitchen, and then went into retirement leaving the place to his kids. It closed about a year later. ---
**Author:** ![D18](https://avatars.discourse-cdn.com/v4/letter/d/c57346/32.png) [@D18](https://boards.straightdope.com/u/D18)\ **Post date:** [September 21, 2016, 10:58pm UTC](https://boards.straightdope.com/t/trademarks-and-obious-knock-offs/766347/20 "2016-09-21T22:58:05Z")
> [@jtur88](#): > > Courts frequently use the “reasonable person” doctrine, to judge whether a statement might be misleading or not. One example is the motel sign that says “free breakfast”. A reasonable person would understand that that applies to paying guests only, and not anybody passing by on the highway. > > The third world is full of these kinds of knockoffs. I recently saw batteries in Manila with the brand name, in suspiciously familiar font, “SQMY” To support their case, companies will also run (very expensive) surveys to quantify the likelihood of confusion. [Here](http://ams-inc.com/litigation/services/trademark/) is a good overview of the various options from one such supplier. [Next page](https://boards.straightdope.com/t/trademarks-and-obious-knock-offs/766347.md?page=2)