Is “Inspired By” Packaging Copyright Infringement?

Is “Inspired By” Packaging Copyright Infringement? Aldi v Hampden Explained

Here's a sentence that should make every business owner sit up. A design agency told its client, in writing, that a new packaging concept was “too close to our benchmark” and asked for it to be pulled back. Not pulled back because it looked bad. Pulled back because it looked too much like a competitor's product.

That email became evidence in a Federal Court copyright case. And the decision that followed tells you a lot about where the line actually sits between being inspired by a competitor and infringing their rights.

This is a follow up to Episode 7, “Aldi and Dupes: When Inspiration Becomes Infringement,” where we first covered the trial decision in this case. If you haven't read or listened to that one, it's worth going back to first. This post picks up with the Full Federal Court's appeal decision, and what it means if you've ever briefed a designer to create something “similar to” a competitor, or asked an agency to “benchmark” against another brand.

Setting the scene

Hampden owns the packaging designs for Baby Bellies, Little Bellies and Mighty Bellies, a range of baby and toddler snack products. Nine separate packaging designs, all developed by a design studio, all protected by copyright as artistic works. (At trial there was also a dispute about whether Hampden actually owned these designs and whether the copyright had been properly assigned to it. That's always worth checking before you consider suing anyone over your IP. For this post, we'll assume the ownership is clean, because if you've sorted out your own assignments properly, this is the part of the story you get to skip.)

Aldi wanted to launch a competing baby snack range under its Mamia house brand. The evidence, which came out through internal documents and emails, showed that Aldi gave Hampden's actual packaging to its own design agency and told them to use it as a benchmark. The instructions were to “follow the architecture” of Hampden's designs. At one point, a draft came back that was flagged internally as “too close to our benchmark,” and it was pulled back slightly.

So the strategy, as the court described it, was this: get as close as possible to a competitor's successful packaging, without crossing the line into copyright infringement. That's a strategy a lot of businesses use, whether or not they'd ever put it in writing like that. This case shows exactly why putting it in writing, and getting the line wrong, is expensive.

What happened at trial

At trial, the result was mixed. Aldi had eleven products in its new range. The trial judge found that three of them, the “puffs” products, did infringe Hampden's copyright. The other eight were found not to infringe.

Both sides appealed. Aldi appealed the three findings against it. Hampden cross appealed, wanting the other eight brought into the infringement column too.

Why the Full Court said the trial judge got the method wrong

This is where the case gets genuinely useful, because the Full Court didn't just rerun the same test and land somewhere different. It said the trial judge's whole approach to assessing infringement had a problem.

The trial judge had built a list of abstract design elements, things like a two column layout, a rounded childlike font, a cartoon character with a lighter coloured belly. Then, for each Aldi product, the question became whether each element was present. Tick enough boxes, and you've reproduced a substantial part of the copyright work.

The Full Court said that's not how copyright infringement actually works. Two things were missing.

First, a genuine side by side comparison. Copyright doesn't ask whether an abstract feature exists in both products. It asks how similar the actual images are, the specific character, the specific layout, the specific typography, considered as a whole. Reducing a packaging design to a checklist of generic features and marking each one present or absent skips over the actual degree of similarity, which is where the real analysis needs to happen.

Second, and this is the part worth sitting with: originality. Copyright doesn't protect ideas, styles, or a general look and feel. It protects a particular form of expression. So when you're asking whether someone has taken a substantial part of your work, you have to ask how original the part they took actually was. If a design element is common across the whole industry, a white background, a cute cartoon animal, product photos in the top corner, copying that element carries a lot less weight than copying something genuinely distinctive.

There was actual evidence about this in the case. Hampden's own designer gave evidence about the creative process behind the packaging: the market research, the design iterations, the deliberate choices behind the colour palette, the font, the mascot. Aldi, in turn, had evidence that some of those same features, playful characters, ingredient photos, age range indicators, were common across other baby food brands in the market. The trial judge didn't properly weigh that evidence when deciding whether a substantial part had been reproduced, and the Full Court said that was an error.

Hampden didn't help its own case either

Hampden's argument leaned heavily on the idea that all nine of its packaging designs shared a common look and feel, and that Aldi had copied that overall look and feel rather than any one specific design.

The Full Court was clear that this isn't really how copyright works either. Copyright protects a particular work, this specific piece of packaging, not a general style or vibe running across a whole product range. You can't point at nine different designs, extract a shared aesthetic, and then claim that as the thing that was copied. Each comparison has to be a specific work against a specific alleged copy.

So both sides were, in a sense, arguing past the real question. Aldi was defending against a checklist. Hampden was arguing about a look and feel. Neither of those is what copyright actually protects.

What the Full Court decided

Rather than sending the whole case back for a retrial, the Full Court redid the infringement analysis itself, pairing up specific Aldi packaging against specific Hampden packaging, and weighing both the similarities and the differences with real regard to how original the copied elements actually were.

It's also worth noting that Hampden had limited which of its own designs it put forward as the comparator works. The Full Court suggested that had Hampden left this open, there might have been even more Aldi products at risk of a finding of infringement.

On the puffs range, the three products the trial judge had already found infringing, that finding was largely upheld, because there was genuinely a close, specific similarity in the combination of features, not just an abstract checklist match. Some products that hadn't originally been found to infringe were also brought into the infringing column on appeal.

On damages, the Court also upheld the finding that Aldi's conduct was flagrant enough to justify additional damages. This is the part that should really land for business owners. It wasn't the packaging alone that caused the damage. It was the paper trail: the instruction to “follow the architecture,” the internal feedback that a draft was “too close to our benchmark.” Aldi's own documented process became some of the strongest evidence against it, even though the same evidence also showed Aldi trying to stay on the right side of the law.

What this means for your business

• Benchmarking a competitor isn't automatically illegal. Looking at what's working in your market and being inspired by it is normal business practice.
• How you document that process matters enormously. Instructions to a designer like “make this look like theirs, but not too close” create a paper trail a court can, and will, read literally.
• Copying a vibe is genuinely different from copying a work, and that difference cuts both ways. It protects you from vague, sweeping look and feel claims, but it won't protect you if what you've actually reproduced is a specific, original combination of design choices.
• Originality evidence matters, and most businesses don't think to keep it. Your own design process, the research, the drafts, the reasoning, can become directly relevant to whether an infringement claim succeeds.

Practical steps if you're commissioning branding or packaging design

• Brief your designers properly, and be careful what you put in writing. “Look at what's working in the market” is a normal brief. “Match this competitor's benchmark, but pull back if it's too close” is a brief that creates evidence against you if it ever goes wrong.
• Keep records of your own creative process. If you can show genuine, independent design decisions, why you chose that colour, that layout, that character, that record protects you if someone later claims you copied them. If you were inspired by another brand, keep that inspiration board too, so you can show how you diverged and built on the idea yourself.
• If your own packaging or branding has been closely mimicked, don't assume a vague “it just feels similar” argument will get you there. You need a specific, work by work comparison, and ideally evidence about what makes your design original.
• Get advice before the packaging goes to print, not after a letter of demand arrives. The legal test here is genuinely nuanced, and a quick review at the concept stage is a lot cheaper than a Federal Court appeal.

Where to next

If your business is developing new branding, packaging or product design and you want a sense of where your risks and gaps might be, start with the free IP Risk and Ownership Audit on the website. It only takes a few minutes and gives you a tailored action plan.

If you'd rather talk it through directly, you can book a Strategy Call any time.

Disclaimer: This article is intended for general educational purposes only and does not constitute legal advice. You should obtain advice tailored to your circumstances before acting on any information discussed in this post.