Mamma MAMIA! Aldi’s puffs deflated in copyright infringement stoush

It is no secret that Aldi Foods Pty Ltd (Aldi) sails close to the wind when it takes inspiration from the products of other traders - it even has utilised the slogan "Like Brands. Only Cheaper."

Recently, Aldi found itself on the receiving end of a claim of copyright infringement in respect of certain artistic works used on the packaging for children’s food products. We discuss the decision and the emphasis on assessing copyright infringement on a qualitative, not quantitative basis.

Claims

Hampden Holdings I.P. Pty Ltd and Lacorium Health Australia Pty Ltd (the Applicants) owned the copyright in artistic works used on the packaging of its BELLIES range of baby puffs (Puffs) and rice bars, biscuits and multigrain sticks (Non-Puffs).

The Applicants sued Aldi for copyright infringement of these artistic works in relation to works on Aldi’s MAMIA range of similar baby and infant food products.

Representative examples of some of the packaging in dispute is reproduced below, which were categorised as Puffs Work and Non-Puffs Works.

Aldi cross-claimed against Hampden, alleging that Hampden had made unjustified threats of copyright infringement.

The Judgment

On 17 December 2024, the Honourable Justice Moshinsky of the Federal Court of Australia delivered his judgment, concluding the following:

1. the Applicants had the right to bring their claims for breach of copyright;
2. the Aldi Puffs Works reproduced a substantial part of the Applicants’ Puffs Works;
3. however, the Aldi Non-Puffs Works do not reproduce a substantial part of any of the Applicants’ Non-Puffs Works;
4. Aldi was liable for additional damages; and
5. The cross-claim be dismissed.

Copyright infringement claim

To give rise to copyright infringement, the infringing work must reproduce a ‘substantial part’ of a work without authorisation.

Although consideration must be given to the extent of what is copied, it is critical to consider the quality of what it is copied. When considering the question of substantiality, it is not relevant to examine in what respects the two designs are different.

His Honour considered that there was a causal connection between the Applicants’ Puffs Works and Applicants’ Non-Puffs Works and both the Aldi Puffs Works and Aldi Non-Puffs Works.

The evidence made clear that Aldi had access to the BELLIES works and an inference could be drawn that the process undertaken was to design packaging that resembled the relevant BELLIES packaging.

His Honour considered that the Aldi Puffs Works reproduced a number of the layout and design elements of the Applicants’ Puffs Works, namely:

1. a small, oval-shaped cartoon character, with a large, light-coloured belly;
2. a solid white background;
3. a two-column layout;
4. a rounded, childlike font;
5. on the left side, text elements of varying sizes, “stacked” vertically;
6. on the right side, photographic images of the product and ingredients, in a vertical composition; and
7. a number in the upper-right corner.

Considered cumulatively, His Honour considered that these layout and design elements constituted a substantial part of the Applicants’ Puffs Works.

His Honour rejected Aldi’s submission that the Applicants were seeking to protect an idea of the ‘look and feel’ of their products rather than a form of expression.

His Honour also took the view that although there were differences between the Aldi Puffs Works and the Applicants’ Puffs Works, this was insufficient to overcome a finding of objective similarity where the part taken is qualitatively significant.

With respect to Aldi Non-Puffs Works, His Honour considered that none of these works reproduced a substantial part of the Applicants’ Non-Puffs Works, as they did not reproduce all of the layout and design elements detailed above. His Honour considered that while the question is to be approached qualitatively, the number of layout and design elements that have been reproduced can be relevant to the qualitative assessment.

Additional damages

Additional damages were awarded against Aldi for the following reasons:

1. Aldi’s conduct was flagrant. Aldi took the risk of deliberately developing packaging for the MAMIA Puffs products that resembled the packaging of the BELLIES Puffs products;
2. it was necessary to deter similar infringements of copyright; and
3. Aldi continued to sell its Puffs products in packaging bearing the Aldi Puffs Works for some months after Hampden’s lawyers sent the letter of demand.

The amount of additional damages has not yet been assessed.

Unjustified threats cross-claim

As the Applicants’ case based on the Aldi Puffs Works was successful, His Honour was not satisfied that the threats made by Hampden in relation to these works were unjustifiable.

Key lessons

This decision makes clear that where a company designs a brand by taking inspiration from an existing competitor brand, great care should be taken to ensure that a substantial part of the artistic work that makes up the brand is not reproduced.

Although in this case Aldi was successful in avoiding a finding of copyright infringement in respect of certain artistic works that did not reproduce all of the layout and design elements of some of the Applicants’ artistic works, it would be an oversimplification to interpret this to mean that one or two elements can be omitted and there will be no finding of infringement.

Critically, the test for the reproduction of a substantial part remains a qualitative assessment. Moreover, companies should be alive to the fact that courts will not be swayed by the addition of differences where a substantial part has been reproduced.