Package designs and product names are trademarks. Trademarks allow manufacturers to defend their investments in brands against infringement by copycats seeking to profit from someone else’s hard (and valuable) work.

But brand knockoffs happen all the time!

Recently two cases came to light that illustrate and raise questions about the practice.

As reported in Food Business News, Kraft recently sued Interamerican Foods Corp. for selling chocolate chip cookies with packaging “that … was clearly derived from, Kraft Foods’ package design” for Chips Ahoy under the La Moderna brand. Kraft noted similarities in color, photography and other elements of design between the packages.

You don’t have to be the cookie monster to give La Moderna’s packaging a zero on the BS meter.

Similarly, as reported on Fast Company’s site, the government of Bolivia began distributing a carbonated beverage made from coca extract. They named it Coca-Colla. Bolivia’s Ministry of Coca and Integral Development (and what country doesn’t have a Minister overseeing its commercialization of mind altering narcotics?) is working to develop what it considers legitimate uses of coca leaf, a revenue generating cash crop.

The legal eagles in Atlanta don’t need medicinal stimulants to keep them up at night lately. No official response has apparently yet been issued.

For many years, U.S. retailers building private label brands relied primarily on knockoffs like these. And for many years, the national brands that were so clearly being imitated chose NOT to seek legal redress.

My research into private label packaging dates to around 2000. That was before retailers understood they could use strategic design to make private label products more than just discounted imitations of national brands.

At the 2001 Private Label expo in Las Vegas, I presented this theory on why copycatting was tolerated.

First, and most obvious, like any rational pooch, a national brand hesitates to bite the hand that feeds it. Lawsuits against important customers aren’t likely to win shelf space.

The second reason is more subtle. Private label products tend to be shelved next to the national brand “equivalents” to facilitate price comparisons. Visually, the result is to increase the apparent shelf presence of the national brand!

Finally, and perhaps most importantly, shoppers considering two similar packages are likely to ask the question, “should I save a few pennies and buy the imitator, or just grab the real thing?” Through the flattery of imitation, the image of the national brand is reinforced, regardless of the shopper’s decision!

It’s easy to see that Kraft has nothing to gain from La Moderna’s blatant ripoff of Chips Ahoy’s identity architecture. Hence: lawsuit.

In the case of Coke and its new step-sister Coca-Colla, the decision process will likely be different. Coca-Colla is unlikely to be distributed beyond Bolivia. I doubt there’s a court in Bolivia that would give Coke standing to sue. And any US legal proceeding would not likely be enforced in Bolivia. This case seems destined to be filed away as an obvious, but ultimately harmless imitator. No need to call attention to it, or to its progenitor, Bolivian President Evo Morales, a noted antagonist of the capitalist system that’s been so good to Coke over the years.

To brand managers everywhere, keep your antennae up. But keep your strategic thinking caps on and remember that in business, a victory in court may be pyrrhic and not necessarily help the bottom line.

Feel free to comment on these particular infringement examples or my theory on private label infringement practices. If you have any other noteworthy examples of infringement, please share!

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Research continues to demonstrate that a large number of purchase decisions are made in-store. This is not only a result of impulse decisions. Often, shoppers who use lists (and the current economy has seen a substantial increase in the number of shoppers who do) lack a preferred brand or fail to locate their preferred brand on shelf.

Here are five tips that can help you capture these sales. The first four are a function of package design. The last relates to overall brand communications.

1) Defy Structural Norms
A new or unexpected structure is a great way to break the visual monotony of most retail shelves. Either due to packaging efficiencies or consumer expectations, package structures within a category tend to gravitate toward a common format. Breaking the rules can be a great way to make your package stand out, especially when the structure provides added functionality.

Consider some of the newer “To Go” packs, like Campbell’s Soup at Hand (microwave, drop into your car’s cup holder, and sip away). How about tuna in a flexible pouch, an innovation that helps you prepare meals anywhere without the fuss of a can opener or messy liquid that you press out of a can.

Heineken designed a can that’s a keg, sort of, and any red blooded male will tell you that’s where real beer fun is found.

Sometimes what’s old can seem new again. Kraft Good Seasons still sells salad dressings as flavoring pouches you mix with oil, vinegar and other fresh ingredients in a “free” cruet. This legacy product plays smartly to today’s desire for fresh and homemade. Updated packaging for the cruet clearly differentiates this form from standard plastic and glass containers that dominate the salad dressing aisle (although I would prefer a package that does a better job of showing the cruet itself).

2) Break the Color Barrier
Like package structure, colors often blend with one another. Sometimes color cues seem required, like green for decaf coffee, or red for pasta sauce. But research shows that color is one of the strongest visual differentiators. If everyone else is red, why shouldn’t you be blue?

Fiji water introduced color to a colorless product by printing the back panel of its bottle with a colorful tropical leaf.

Mississippi Cheese Straw Factory’s Cookie Straws utilize a simple design scheme dominated by an unexpected and vibrant color palette. Combined with their unusual paperboard “gift bag” package structure, these packages draw attention and brand upscale from typical cookie fare.

Similarly, Yellow Tail wines feature a bold color cue (signaling the type of wine) on each label, calling attention to the individual bottles and to the brand as a whole.

3) Know Thy Customer
Equivalent products often appeal to different market segments. Lifestyle branding is a great way to develop niche appeal. Can you use humor or hipper graphics to make the next generation of homemakers yours? If your customer base is aging, does it make more sense to provide visual cues that appeal to a boomer or mature autience (larger type, health claims, easy open closures). Marketing tie-ins to worthy causes are another way to position your product.

New York drug chain Duane Reade recently introduced a private label brand called Apt. 5 to recognize and appeal to its base of apartment dwelling urbanites. [Images courtesy of My Private Brand blog (mypbrand.com).]

Adult soft drink 420 Soft Brew, a carbonated, brewed beverage, uses a colorful and energetic design scheme to attract the 18-30 active lifestyle demographic. (Full disclosure: Goldforest created this brand.)

Publix feminine hygiene products use contemporary illustration to depict young women with aspirational lifestyle imagery. The result is a highly targeted message that identifies and speaks directly to its users.

Great Grains uses color and imagery to capitalize on and further the cause of breast cancer awareness with this limited time cereal pack. Limited time promotional packs are in general a great way to draw attention. If brands are like friends, this is like your friend with a new hair do!

4) Play The Name Game
In food and beverage, names tend to be dry and descriptive and lacking in personality. While new products always have the option of differentiating through their choice of a brand name, even existing lines can use naming to their advantage when introducing new varieties or line extensions.

Consider Emeril’s Kicked Up Tomato and Roasted Gaaahlic pasta sauces. Or Publix private label Eggstirs.

If you were going to drink Hemp Milk (and I’m not saying you are), which package would you choose: Tempt, with its clean, bold graphics, silky color palette and luxurious sounding name, or Hemp Dream, whose name and graphics presuppose you’ll have to step away from your bong before sipping?

5) Use Off-Shelf Communications
People respond to the familiar. Given the proportion of purchase decisions that are made in store, being recognized when the customer arrives at the category is critical. Communicating through FSI’s, consumer advertising, in-store promotions (especially sampling), a meaningful Web presence, and in-aisle signage all helps to generate that familiarity.

For example, Milk Bone has a multi-pronged social media strategy (view it at www.milkbone.com). You can click through dozens of adorable doggie pics uploaded from the flikr sites of fans around the world, read about Milk Bone’s support of service dogs, and become a facebook fan of Noble, a loveable pup who is being trained to become a service dog for some lucky and needy individual. Milk Bone supports this effort with both on and offline advertising efforts. Here’s a video they posted on You Tube about the program.

Another emergent phenomenon is Mommy Blogs. The number of women who participate in blogging is astounding. Various estimates put it in the range of 25,000,000! These highly influential women are reading and writing about many things, including consumer products. A number of firms have cultivated networks of these so called mommy bloggers, and for a reasonable fee – much less than the cost of traditional marketing – consumer packaged goods firms like yours can hire them to develop sampling and online review programs.

Stacy DeBroff, founder of Mom Central Consulting (momcentralconsulting.com), will notify her network of 450 bloggers that she’s looking to get the word out about your brand. She’ll select 40 of them (representing about 1.2 million readers), based on their passion for the product, and within 2 weeks of receiving samples and information, they’ll have spread their gospel in their highly credible, first person voices!

Stephanie Azzarone runs Childs Play Communications (childsplaypr.com). She maintains a “Team Mom” of 200 bloggers reaching 1.5 million loyal readers. These brand advocates will tell your customers what to look for and where to buy it. Talk about building awareness before the shopping trip!

There are lots of other ways to make your product stand out on the shelf, but follow these five rules and you’ll not only supercharge your sales but also make retailers and their shoppers alike into loyal fans.

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National Raisin Company of Fowler, California, the country’s largest producer of private label raisins, has selected Goldforest to develop the branding for a new line of fruit-flavored, sweet and sour tasting raisins. The product is made from raisins with the addition of ascorbic acid, real fruit flavors and a small amount of sugar.

National Raisin will debut the product at the annual Private Label Manufacturing Association trade show in Chicago in November 2009.

Goldforest will advise on positioning and brand strategy, product naming, visual architecture and package design.

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Supermarket News reports in its June 22 issue that Hispanics in Spanish-dominant households are less likely to buy private label products than Hispanics in English-dominant households. This comes from a study commissioned by FMI (Food Marketing Institute) and sponsored by Marketing Management Inc.

I was scratching my head trying to figure it out. Could it be that less acculturated Hispanics (first generation, if I may generalize), are not used to the concept of PL? That they have unassailable connections to national brands (the same they shopped at home)? Surely the savings possibilities would move them to trial. And with quality trends in PL, shouldn’t that lead to adoption?

Shocker: turns out that “the difference … is most likely due to the geographic distribution of Spanish-dominant households nd their lack of transportation.” The stores to which they have access, smaller neighborhood groceries and c-stores (presumably) don’t carry PL! Ya gotta love it.

The study was “based on 1,000 telephone interviews of primary grocery Hispanic shoppers in the Top 10 Hispanic markets.”

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I am a big fan of Publix supermarket’s store name private label brand. Ever since I first saw it some five years ago, I saw elegance in its simplicity; I appreciated its ease of application across product categories; I loved the way its designers were able to vary its color schemes, avoiding the monotony to which some private label designs hew in the name of consistency; and perhaps best of all, I found the humorous illustrations a welcome and human touch that drew my attention to package after package.

Having presided over the design of many private label products over the years (examples at www.goldforest.com), and as someone who’s written and lectured widely on the subject of private label branding, I give Publix an A+ for its body of work.

All of which brings me to the subject of my mother. Yes, the same one who starred in my first television commercial 16 years ago, charging from home to the rescue at the last minute when my lead actress failed to show at the shoot. The result, predictably, was oohs and ahhs for HER every time I showed MY spot to friends and family. Mom, now 78, has been a loyal purchaser of Publix brand Free&Clear Ultra Laundry Detergent for a while. When guests at her home noted recently that her towels were notably lacking in absorbency, she discovered that for two months she’d been “washing” her clothes with Free&Clear Ultra Fabric Softener!

Over dinner last week, she told me that the bottles of the detergent and softener were so deceptively similar, she’d purchased the wrong one. Upon my examination of the packages, I can see that she is very, very right. Clearly the designer of this packaging system intended to communicate the compatibility of these products as a one-two laundry solution. The colors of the container, cap and label graphics are identitical, as is the sub-brand logotype “Free & Clear.” The illustrations are different, but neither clearly references either the detergent or softener function. The same argument applies to the slight differences in container shapes and sizes, as well as the variations in cap design: they are not category specific. In fact the only design element that clearly and undeniably tells the shopper which product is which is the descriptor line, printed in light grey, at 1/3 the type size of the logo lettering and just beneath it.

This error is a sort of “line extension nightmare,” and an occupational danger of the private label designer. A private label brand is in essence one long series of line extensions. In the case of a supermarket, it can stretch across 30 categories or more, and some categories may be dozens of product variations deep!

Publix offers multiple scents of Ultra Laundry Detergent / Fabric Softener combinations in addition to Free & Clear. Shown here is the Fresh Scent variation, using a pink motif. Other than the pearlescent colored cap on the softener, the same issues exist in differentiating by function.

The problem is that detergent and softener are two different categories, and in this case, there is simply not a strong enough visual differentiation between them to prevent the habitual shopper from grabbing the wrong one. Is that too strong a conclusion to draw on the basis of one untoward incident? In the case of my mother, who I know to be a lifelong savvy shopper, I think most definitely not. Publix, notice served!

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