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ARTICLE · 04 NOVEMBER 2026

Benchmarking “not Too Closely” – Is It Still Too Close?

Piper Alderman
Piper Alderman
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Piper Alderman

Piper Alderman

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The Full Federal Court has clarified the test for copyright infringement in artistic works on product packaging, rejecting a generalised 'look and feel' approach in favour of detailed side-by-side comparisons. In a dispute between Aldi and Hampden Holdings over baby snack packaging, the Court found that five of Aldi's eleven MAMIA designs infringed copyright, despite Aldi's deliberate strategy to stay 'not too close' to its competitor's benchmark designs.

AustraliaIntellectual Property
Tim O’Callaghan
Tim O’Callaghan
Travis Shueard
Travis Shueard
Sahar Al-Dulaimi
Sahar Al-Dulaimi
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Background

The respondents (together, Hampden) own copyright in the artistic works appearing on the packaging of their baby and child snack range sold under the marks BABY BELLIES, LITTLE BELLIES and MIGHTY BELLIES (Hampden Works).1

Aldi, through its design agency Motor Brand Design, developed packaging for its MAMIA snacking range (Aldi Works) using the Hampden Works as its “benchmark”.2 Aldi instructed its designers to “follow the architecture” of the Hampden Works; a draft which received feedback that it was “too close to our benchmark” was then altered to be slightly less similar.3 The primary judge inferred that the aim was for the Aldi Works to resemble the Hampden packaging, “albeit not too closely, because that would infringe the law”.4 This was found to be “part of a deliberate strategy to create packaging for its own products that resembled the packaging of its competitor”.5 However, on appeal it was confirmed that intention will not assist an alleged infringer if

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