In United Biscuits (UK) Limited v. ASDA Stores Limited, the plaintiff, a brand leader, has succeeded for the first time in a passing-off action brought in the High Court against a supermarket's own "look-alike" brand. The defendant's PUFFIN chocolate wafer bars were positioned alongside the plaintiff's PENGUIN biscuits on supermarket shelves and were similarly packaged as to color, size and shape. Initially, at least, the lower price of the "look-alike" product was emphasized. The defendant admitted that its PUFFIN product was designed to be as close as possible to the PENGUIN product in get-up and it was the similarity of packaging which led to the finding of passing-off. This ruling came despite the little weight that was given to the evidence offered of confusion between the two products. The judge did, however, have the impression that the similarity between the respective packages would cause a substantial part of the public to conclude that there was a connection in trade between the two biscuit manufacturers.

The decision seems likely to lead to a change in emphasis by supermarkets away from producing their own brand labelled products which mimic the products of brand leaders. As the United Kingdom has no specific unfair competition laws, the decision may be seen as a breakthrough for leading brand owners, particularly as provisions to deal with the "look-alike" question were discussed but then omitted from the Trade Marks Bill when it was going through its legislative stages prior to becoming the 1994 Act.