Parallel and convergent design evolution, “piggy-backing” and biscuit packaging…

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Reading the news reported in the Irish Times and at packagingnews.co.uk one is reminded of the perils of FMCG [Fast Moving Consumer Goods] packaging.

As the Irish Times noted:

Jacobs has accused rival biscuit firm McVities of “living dangerously” in a High Court row over fig rolls and cream crackers.

One hundred thousand packets of McVities biscuits are at the centre of the dispute which isn’t over how they get the figs into fig rolls but about how the biscuits are packaged.

The Irish-owned Jacobs Fruitfield Food Group has accused United Biscuits, trading as McVities, of “piggy-backing” on the goodwill of Jacobs in the Irish market by packaging McVities crackers and fig rolls in a manner similar to Jacobs brands.

John Gleeson SC for Jacobs argued that the McVities products were ‘confusingly’ similar to those of Jacobs and therefore could do ‘incalculable damage to Jacobs’. A curious aspect of the case was noted when he said:

He said the McVities product was the same size and shape as that of Jacobs and the words fig roll appear in the centre of the packaging. The photography used in the packaging was also similar.

Because McVities markets the Jacobs brand in the UK, it had all the necessary artwork and software, including the relevant photographs used in the packaging of the products being sold in Ireland, counsel added. This had not been denied by McVities.

The dreaded term ‘passing off’ came into play during the case.

Interestingly the Judge, Justice Frank Clark ruled in favour of Jacobs as regards the Fig Rolls but said “he was not satisfied Jacobs had made an arguable case justifying an injunction restraining the advertising, sale and distribution of the cream crackers”.

McVities were not instructed to remove the offending products from the shelves, but were told to implement changes immediately.

The report noted that:

As McVities has agreed to change the packaging of future packets, the case related to 100,000 packets of biscuits, 10,000 of which are on supermarket shelves and 90,000 in warehouses.

McVities has denied the claims and denies imitating the Jacobs packaging in Ireland. It has also denied that consumers would be confused by the products and contends that Jacobs cannot claim to have a monopoly on the colouring, size or shape of the packaging involved.

The court heard McVities had agreed last month to alter the packaging on the cream crackers and fig rolls. However, it complained that it would be next year before they would be able to launch the new version of the products and that the court should permit the sale of the products already packaged.

And packagingnews.co.uk reported that:

Paul Parkins, director of Republic of Ireland and Northern Ireland for McVitie’s owner United Biscuits, said he was disappointed by the decision but the company already planned to “amend the packaging of its fig rolls to further distinguish them as McVitie’s products”.

He added: “We will continue with the launch of our McVitie’s cream crackers in the proposed packaging so that there is no delay in Irish shoppers gaining better choice.”

So, what to make of it all. Well, as can be seen from the images at the top of this post there is a certain – ahem – convergence of design in terms of the Fig Roll packaging. The position of the individual fig rolls, particularly the ones on the upper right hand corner are very similar. The typeface, while intrinsically different, is positioned in such a way as to be quite close. One could argue, and presumably Justice Clark did, that the overall configuration was simply too similar to be dismissed.

The cream crackers present a greater challenge to this sort of analysis. There are distinct similarities. Note that on both packages photographs of crackers are arrayed on the right hand side of the design. The colours used, a sort of rich orange fading to yellow are also similar. But in this instance the use of an oval shape to contain the type on the McVities package is distinct from, if reminiscent of, the diamond shape on the Jacobs pack. The actual typefaces are presented quite differently.

It’s a fascinating issue. But, it is also the result of long term design trends within the FMCG area. The emphasis is on distinctiveness, but convergence also plays its part. Simply put within product areas there are certain expectations amongst consumers and producers as to what packaging will look like. This can lead to unrealistic expectations as to what is possible on the part of those designing this packaging. One point that struck me very forcibly when talking some years ago to a designer engaged in this very area was the comment that a client looking for a new brand identity ‘wanted it to look the same as the previous one, but different’.

That neatly sums up the challenge facing not merely those who produce redesigns of product or brand identities, but also those who must ensure that a product is suitable to compete against rival products. And much depends upon the pre-existing styles already extant within a market.

Consider, by way of comparison, these examples of Fig Rolls produced by non-Irish companies.

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To borrow a term from evolutionary theory these seem to exhibit divergent design traits. Clearly, one can see that they are packages of Fig Rolls. But there is no particular similarity between either set of packages, other than the images of Fig Rolls. The colour schemes, placement of logos and all other designed features are broadly dissimilar.

More particularly neither case is the colour scheme red, as with the Jacobs packaging, and yet both are relatively easily identified as containing Fig Rolls. However, as anyone who has shopped abroad can tell, it is much more difficult to rapidly identify unfamiliar product packaging. And therein lies the significance of all this. The distinction between ‘relatively easily identified’ and ‘rapidly identified’ is the difference between varying market shares.

This is all obvious stuff, and that in a way is what makes the McVities/Jacobs dispute so fascinating. To lead with packaging where the imagery was at least open to the charge of similarity is a curious commercial move.

And in this instance what we seem to be seeing is convergent design evolution. Two different companies selling similar products have arrived at relatively similar package designs.

This happens more often than might be thought. One need only examine the design and packaging of cereals to see that dynamic at work. Still, let’s consider what Richard Dawkins, who knows a thing or two about evolution, wrote in The Blind Watchmaker.

…for just the same reason [that there is a statistical improbability of following exactly the same evolutionary trajectory twice] it is vanishingly improbable that exactly the same evolutionary pathway should be ever be travelled twice. And it would seem similarly improbable, for the same statisitical reasons, that two lines of evolution should converge on exactly the same endpoint from different starting points.

One might sense that legal representatives for one side or another in the recent case might find that interesting…Yet he goes on to note that…

It is all the more striking testimony to the power of natural selection, therefore, that numerous examples can be found in real nature, in which independent lines of evolution appear to have convereged, from very different starting ponts, on what looks very like the same endpoint. When we look in detail we find – it would be worrying if we didn’t – that the convergence is not total.

As with nature, so with design. And that is, in part the reason why cereal packaging, or biscuit packaging, or indeed many aspects of design follow well trodden and broadly similar routes. It isn’t simply form following function, but in fact a sort of – and one doesn’t want to overstretch the comparison – evolutionary process borne of trial and error. This is particularly true in the FMCG world, where margins are tight, but overall sales garner impressive profits. And overall sales can only be built on consolidating and expanding market share which necessitates bringing the competition to ones rivals. The paradox here is that whereas distinctiveness and originality is often trumpeted as a core value of visual communications or design in general, it is by contrast in similarity that commercial utility can be found.

Of course, being somewhat cynical about it, one might argue that now at least some consumers are familiar with the idea that McVities has produced and is now selling brands of cream crackers and fig rolls in the Irish market. Perhaps not quite ‘win, win’, but there has been no significant sanction against McVities.

Meanwhile, I’m looking forward to seeing the new Fig Roll packages…

[Incidentally, worth noting the way in which this case was reported. The headings of various articles were variously “Jacobs goes crackers over McVities”, “Court cares a fig for Jacobs claim”, etc, etc. Inevitable, but perhaps evading the seriousness of the central issue]

Ciarán Swan

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