The Full Court held that the trial judge got it wrong, but still held Aldi infringed Little Bellies copyright in a number of its snack packaging designs.
Aldi has failed in its appeal seeking to overturn a finding that packaging used on its children’s snack products infringed the copyright of Hampden, the owner of Little Bellies snack brand[1].
At first instance the results were mixed, with the primary judge holding that a number of the Aldi packages did infringe Hampden’s copyright, but others did not. Both sides appealed.
The result in the appeal was also mixed, but ultimately Aldi was the loser, with the Full Court finding infringement in relation to a number of Aldi’s packaging designs.
Although the Full Court held that some but not all of Aldi’s packaging designs infringed, it did so after having decided that the primary judge had not approached the case correctly, and so it was appropriate for the Full Court to consider the merits itself.
An example of the Hampden and Aldi packaging at issue is shown below.
Assessing a "substantial part": the side-by-side test
In order for there to be copyright infringement a “substantial part” of the copyright work must be taken. The Full Court held that the proper approach to assess this involves looking at the two works side by side to consider, having regard to all of the similarities and differences, whether a substantial part of the copyright work had been taken. That includes an analysis of the extent to which the visual or pictorial elements had been taken, and also a consideration of the originality of the copyright work. The Full Court said that exercise was not what was undertaken by the primary judge, who identified particular features at a level of abstraction and considered whether they were present or not, and also failed to consider the originality of the copyright work.
In those circumstances the Full Court considered anew whether there was infringement in relation to some 13 cases.
In the case of the Aldi package shown above, the Full Court held there was infringement. The Court identified a number of similarities and differences between the two. However, although pointing out other similarities the court seems to have been satisfied of infringement on the basis that the photographs of the blueberries and puffs on the Aldi package were sufficiently similar to those on the Hampden work so as to amount to a reproduction of that element, and further that was a relatively significant part of the Hampden work [2].
In another example shown below the Full Court held that the Aldi packaging infringed the Hampden Work.
In that case it appears to be because the Aldi work included “the distinctive round, light-coloured belly with writing in it”, which was present in the Hampden Work[3].
In some cases, the Full Court found no infringement. One of those is shown below.
This Aldi package was held not to be an infringement, with the court pointing to the difference in the colour of the owl.[4]
It is apparent that the Full Court found the determination of whether a substantial part of the copyright work was taken in a given case a difficult exercise, with different results in cases having arguably only marginal differences between them.
Additional damages
The primary judge, having found infringement, awarded additional damages, on the basis that Aldi’s actions were flagrant. In arriving at its designs Aldi had indeed looked at the Hampden packaging but said that its intention was to not infringe, by making the designs sufficiently different.
The Full Court did not disturb the primary judge’s order as to additional damages, which are to be assessed.
The role of Animus Furandi: the “intention of stealing”
Animus Furandi is Latin for “the intention of stealing”.
The Full Court mentions this but only to say that it did not intend to consider it in this case, preferring to leave it to a case where it is fully argued – which it wasn’t here.
The Full Court did, however, refer to a number of previous cases in Australia and the UK[1] where this principle was mentioned. This included the Kookaburra case[2] where the court indicated that in some cases “the intention of the alleged infringer may take on considerable importance”[3].
This albeit brief discussion is interesting given the High Court’s recent discussion of intention in relation to passing off and misleading conduct in the Bed Bath N’ Table case and perhaps foreshadows some development on the role of intention in a copyright context.
This case demonstrates that there can be very fine distinctions in copyright infringement assessments as to whether a packaging, or indeed any, design which has been developed from another’s copyright work has taken a “substantial part” of that work and so infringes. Trying to do the “right thing” by making changes is not necessarily enough. To be safe don’t use the designs of others as your inspiration.
[1] Aldi Foods Pty Limited v Hampton Holdings I.P. Pty Limited [2026] FCAFC 103
[2] [159]
[3] [186]
[4] [217]
[5] See Baigent v Random House Group Ltd (2007) 72 IPR 195 at [95] where the principle was dismissed as irrelevant as a matter of law
[6] EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd [2011] FCAFC 47
[7] At [221]
