Aldi is facing a hefty damages bill for copying a Sydney-based baby food brand’s packaging, in a rare example of the German supermarket giant falling foul of Australian law.
The grocery chain is famous for taking cues from rival brands in marketing its own products, and the strategy was the focal point of its long-running “Like Brands. Only Cheaper” advertising campaign.
The Baby Bellies packaging, left, and Aldi’s copycat Mamia packaging on the right.
Its formula has proven successful, and it has fended off Australian lawsuits over Cheezy Twists, Aldi’s answer to Twisties, and its Moroccan Argan Oil hair care products.
But in a decision in December, the Federal Court found Aldi had infringed a rival’s copyright by copying a substantial part of the packaging for three Baby Bellies products.
Sydney-based children’s food company Every Bite Counts (EBC) sells snacks under the brand names Baby Bellies, Little Bellies and Mighty Bellies. The trio of “Bellies” brands are owned by a related company, Hampden Holdings I.P. Pty Ltd, and licensed to EBC.
Hampden launched Federal Court action in 2022 after Aldi started selling puffed corn snacks in August 2021 under the banner of the supermarket giant’s in-house baby brand, Mamia, using a similar style of packaging to the Baby Bellies design.
It alleged Aldi had engaged in copyright infringement by reproducing a substantial part of its packaging designs, which are “artistic works” protected by copyright law. The Federal Court agreed.
Justice Mark Moshinsky said Aldi’s packaging reproduced a series of layout and design elements from the Baby Bellies designs, including “a small, oval-shaped cartoon character, with a large, light-coloured belly”, a “rounded, childlike font”, and photographic images of the product and ingredients on the right side of the packet.
He concluded this amounted to a substantial part of the Baby Bellies packaging designs, and that Aldi had engaged in copyright infringement. Moshinsky found Aldi had not infringed copyright in a further eight packaging designs.
Deliberate copying
The judge said he was satisfied Aldi deliberately developed packaging for the Mamia baby puffs that resembled the packaging for the Baby Bellies products.
The court heard Aldi started a redesign of packaging for the entire Mamia range in late 2018. It instructed a Melbourne-based design agency to use Little Bellies, identified as the “snacking range market leader”, as the “benchmark”.
The design agency made a note after a meeting with Aldi in May 2019: “Please follow the architecture of Baby Bellies and use photographic imagery.”
In 2021, Aldi introduced a new product, baby puffs, using similar packaging to the Baby Bellies products. It had previously inquired about stocking the Baby Bellies snacks.
During the design process for the baby puffs packaging, the agency made a note next to one of the proposed packaging artworks: “ALDI have now had legal come back to them and state this design is too close to the benchmark – no shit!”
The judge said that “Aldi sought to use for its own commercial advantage the designs that had been developed by a trade rival”.
“Although Aldi may have intended, if possible, to avoid infringement and legal liability, it took the risk that its use of the [Baby Bellies] designs would exceed what the law allows,” he said. “I consider Aldi’s conduct to be flagrant.”
He said he considered that an “award of additional damages is appropriate to deter similar infringements of copyright”. Damages will be determined at a later date.
‘Unusual’ case
The Mamia baby puffs packaging was revised after Aldi received legal letters about its previous design.
University of Sydney Law School Professor David Rolph said: “This case is unusual because it’s based on copyright infringement. Most claims [against Aldi] have been for misleading or deceptive conduct or passing off or trade mark infringement.
“Those causes of action centrally concern consumer confusion. Copyright infringement is different in that the focus is whether the alleged infringer took a substantial part of an original copyright work.”
Aldi no longer sells Mamia products using the offending packaging.
Previous cases
Aldi has successfully defended other lawsuits against it in Australia, but they were framed differently.
In 2001, the Full Court of the Federal Court found the product name Cheezy Twists was not “deceptively similar” to Frito-Lay’s Twisties trade mark, meaning it was unlikely to “deceive or cause confusion” among shoppers.
The court was not asked to look at the packaging as a whole, including colours and design, but simply to compare the words “Cheezy Twists” and “Twisties” including similarities in appearance and how the names sounded when spoken.
Frito-Lay’s Twisties and Aldi’s Cheezy Twists.Credit: Dominic Lorrimer
In 2017, the Federal Court found Aldi’s Moroccan Argan Oil hair care line might “remind” consumers of the more expensive Moroccanoil products, and was intended to do so, but shoppers would not think Aldi’s budget products came from or were associated with the luxury brand.
Every Bite Counts co-founder and managing director Clive Sher said: “We hope this [decision] will give all brand owners confidence and direction when faced with such problems.”
Aldi declined to comment.
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