By Scott Coulthart, Partner and Rio Ramsey, Paralegal
Benchmarking against a competitor’s packaging is a common commercial practice. However, there is a clear distinction between drawing inspiration from a market leader and infringing its copyright.
In Aldi Foods Pty Limited v Hampden Holdings I.P. Pty Limited [2026] FCAFC 103, the Full Court of the Federal Court provided valuable guidance on the proper approach to assessing copyright infringement.
While the Court concluded that the primary judge had erred in aspects of the infringement analysis, it did not necessarily follow that the ultimate findings were incorrect.
The decision serves as a reminder that, while competitive benchmarking is permissible, the line between inspiration and imitation can be surprisingly fine. As Aldi has now discovered, that line may be much narrower than one might expect.
After conducting the comparison afresh, the Full Court concluded that five of Aldi’s MAMIA packaging designs infringed copyright in the BABY BELLIES packaging range – two more than had been found to infringe at first instance. Although Aldi succeeded in part, the Full Court observed that it had gone “slightly backwards overall”.
Hampden Holdings and Lacorium Health Australia own the copyright in the packaging artwork used for the BABY BELLIES, LITTLE BELLIES and MIGHTY BELLIES children’s snack ranges.
In April 2019, Aldi identified LITTLE BELLIES as the “benchmark” for the redesign of its MAMIA snacking range. Its design agency, Motor Brand Design, was instructed to develop packaging that resembled the BELLIES design architecture.
At first instance, the primary judge found that multiple examples of Aldi’s packaging infringed copyright in the corresponding BELLIES puffs packaging. His Honour also concluded that Aldi’s conduct was flagrant and, on that basis, awarded additional damages.
Aldi appealed the findings of infringement, while Hampden cross-appealed in relation to the further packages that were initially found not to infringe.
The Full Court upheld Aldi’s appeal in part and identified an error in the primary judge’s methodology. Copyright protects a particular artistic work and its particular form of expression. It does not confer proprietary rights in a general style, branding concept or overall visual impression derived from a collection of different works.
Accordingly, the correct inquiry required a direct comparison between each Aldi package alleged to infringe and the specific BELLIES package said to have been reproduced. The question was whether a substantial part of that particular artistic work had been copied.
The Full Court was critical of an approach that identified design features at a high level of abstraction and then treated those features as either present or absent in the competing packaging. When visual elements are described in sufficiently general terms, significant differences between the works can be obscured.
For example, distinct characters may both be characterised as an “oval-shaped cartoon character with a light-coloured belly”. Different photographic arrangements may be reduced to “images of the product and ingredients displayed vertically”. Similarly, different typefaces may be described simply as “rounded, childlike fonts”.
The Court considered that this approach risked shifting the focus away from the artistic expression embodied in the copyright work and towards broader design concepts. Copyright law protects the former, not the latter.
The Full Court cautioned against treating copyright as protecting a general “look and feel”. While a particular combination and arrangement of elements may constitute original expression, the inquiry remains whether a substantial part of the specific copyright work has been reproduced.
That assessment requires the court to identify the relevant work, compare it with the alleged infringement, and evaluate the significance of both the similarities and the differences.
The Full Court further emphasised that originality is relevant not only to copyright subsistence but also to whether a substantial part has been reproduced.
The BELLIES designer gave evidence about the creative process underpinning the packaging, including its colour palette, typography, photography and layout. The Full Court found that those choices formed part of the work’s original expression and needed to be considered when assessing what, if anything, had been taken.
Having found legal error, the Full Court did not send the matter back for another trial and instead undertook the comparison exercise itself.
The Court confirmed that Aldi’s “puffs” range infringed copyright and further found that two additional products, which had escaped findings of infringement at first instance, also infringed.
Item 1: Blueberry Puffs Hampden Work |
Item 9: MAMIA Baby Puffs Blueberry Aldi Work – finding: infringement |
The Court held that the infringing packaging reproduced a number of original features of the BELLIES works, including the photographic arrangements, colour palette, typography, layout, text boxes and distinctive character design.
Although the works were not identical, the differences were insufficient to negate the reproduction of a substantial part of the original artistic expression. Taken as a whole, Aldi had appropriated a substantial part of the BELLIES packaging.
However, not every instance of product packaging infringed. In several instances, differences in colour, imagery, ingredients and character design created sufficient distance from the particular BELLIES works relied upon by Hampden.
Importantly, Hampden’s success or failure depended on the particular copyright works it chose to rely upon. The Court assessed each comparison individually rather than at the level of the product ranges as a whole.
Item 1: Blueberry Puffs Hampden Work |
Item 1: MAMIA Rice Cakes Apple Aldi Work – finding: non-infringement |
The Full Court also upheld the trial judge’s conclusion that Aldi was liable for additional damages.
Aldi had deliberately used the BELLIES packaging as a benchmark, sought to obtain a commercial advantage from its resemblance, and continued to use some of the packaging after receiving letters of demand. In those circumstances, the Court saw no reason to disturb the primary judge’s conclusion that additional damages were warranted.
The Full Court’s decision provides important guidance on the assessment of copyright infringement in packaging disputes. It reinforces the need for a detailed comparison of the works themselves, confirms that copyright does not protect a general “look and feel”, and highlights the importance of originality when assessing whether a substantial part has been reproduced.
For businesses engaged in competitive benchmarking, the decision demonstrates the risks of getting too close to a competitor’s creative expression.
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