Screaming Devil vs. Whispering Angel: how brands get away with copying

You’ve heard of Whispering Angel, now get ready for Screaming Devil. The newest addition to Asda’s shelves might seem familiar to winos. Certainly, it’s been a hit with those on social media. But isn’t it copyright infringement?

Most of us know the dangers of being accused of trademark plagiarism. Which is why it can be confusing to stroll down the aisles of popular supermarkets and see familiar designs that seem as though they’re inviting Intellectual Property (IP) lawyers to come knocking. 

Known as dupes, these products fall under a little-known copyright loophole that many big brands have cheekily exploited to sell their own, often cheaper, versions of a product. Below, we’ll highlight some famous duping scandals, and explain what the rules are for SMEs.

Colin’s Law

Asda’s version of the hugely popular Whispering Angel has surprised and delighted customers, who have taken to social media to discuss the “violently iconic” new label.

Part of the attraction is Screaming Devil’s cheaper price point. Sold at £10 per bottle, it’s less than half the price of Whispering Angel’s £22 tag. Indeed, being able to rival a popular competitor product and sell it for less is the main attraction of a dupe for brands.

It’s a similar story for another viral dupe from Primark making waves this week. The budget retailer has caused a stir for selling a £15 tote bag that looks eerily similar to a £190 handbag sold by premium designer, Ralph Lauren. 

And of course, who could forget the OG dupe, Aldi’s Cuthbert the Caterpillar. Its white chocolate face betrays nothing. But it’s clearly a roulade relation to Marks and Spencer’s Colin the Caterpillar (and, notably, costs £5 less than the latter).

Clones, not replicas

Brands can get away with flogging rehashed versions of their competitor’s products if the dupes are legally classed as clones, not replicas.

While dupes involve copying a product’s design, they are an example of brand imitation, not brand impersonation. They won’t use logos and pretend to be another brand. But replicas (also known as “fakes”) will try to replicate the originator’s logo to trick buyers.

The difference is subtle, but it is also recognised in law. While you can’t trademark colours or fonts, you can register a logo as a trademark to protect it from copyright infringement.

In the case of Screaming Devil, for example, the bottle’s design looks similar. But it does not have any suggestion of the Whispering Angel calligraphy font and cherub-faced brand logo, so it is an example of legal copying.

Occasionally, a dupe can slip into a replica. Cuthbert the Caterpillar did lead to a lawsuit because M&S felt its packaging was too close for copyright comfort.

The two supermarkets settled out of court. Cuthbert returned to Aldi’s shelves one month later — albeit with a slight redesign that was most likely recommended by Aldi’s legal team.

Should I do brand imitation?

It’s tempting to look at the customer attention that Asda, Aldi, and the like have received from their duping efforts and wonder if you should do the same for your small business. But there’s a reason it’s almost alway the big brands that are the copycats.

Major supermarkets and fashion chains can contend with each other because they have large legal teams to fight their corner. Small brands are much more vulnerable to lawsuits.

Fashion house Hugo Boss sent cease and desist letters to SMEs who use the word ‘BOSS’ in their brand name. Many bowed to the pressure, unable to drum up the legal fees to take on the Boss (causing comedian Joe Lycett to change his name to ‘Hugo Boss’ in protest).

Besides a lack of resources, it’s also much less satisfying to start a business using an existing idea. Far better to carve out your own niche and answer unmet consumer demand.

It’s important to know your rights, and put protections in place to prevent your own designs from being cloned, such as by registering a trademark. Ecommerce giants Shein and Temu have been accused of making dupes of small business creations in the past.

Our guide on how to protect your business from copycats has more expert tips on maintaining a competitive edge in the face of imitators.