2.8.3. Confusing marketing

Article 6(2)(a) of the UCPD addresses confusing marketing. A practice which raises issues of compatibility with this provision is ‘copycat packaging’, which can occur in the offline and online sales channels. This refers to the practice of designing the packaging of a product (or its ‘trade dress’) to give it the general ‘look and feel’ of a competing well-known brand. Copycat packaging is distinct from counterfeiting as normally it does not involve copying trademarks. The risk posed by copycat packaging is consumer confusion and, consequently, the distortion of their commercial behaviour. Consumer deception caused by copycat packaging can take a number of forms: Outright confusion – the consumer buys the copycat product having mistaken it for the brand; Deception over origin – the consumer recognises the copycat product is different but believes, due to the similar packaging, that it is made by the same manufacturer; Deception over quality or nature – again, consumers recognise the copycat is different but believe, due to the similar packaging, that the quality is the same or closer to that of the copied product. The similar packaging suggests to consumers that the quality or nature of the copycat product is comparable to the quality or nature of the brand in question or at least that it is more comparable than they might otherwise assume. As such, similar packaging gives the impression to consumers that the price alone is the only term of comparison between the products (rather than the combination of price and quality). Annex I to the UCPD prohibits in all circumstances some specific commercial practices that involve confusing marketing in relation to trade marks, brands and related features: A practice that may mislead consumers is the sale by traders or online marketplaces of brand names as keywords if this creates confusion as regards the identity of the trader actually offering the product. The UCPD, in particular Articles 6(1)(a) and 6(2)(a), will come into play if the results displayed are likely to deceive consumers as to the nature of the product or create confusion between products, trade marks, trade names or other distinguishing marks of competitors. Companies using trademarked brand keywords to sell counterfeited products could potentially be found in breach of point No 9 of Annex I to the UCPD.

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Source: EUR-Lex (Cellar) · retrieved 2026-09-25 · Text as adopted (Official Journal); later amendments are not incorporated in this text.