Australian copyright “benchmark” confirmed by the Full Federal Court

Assessing the findings in Aldi Foods Pty Limited v Hampden Holdings I.P. Pty Limited [2026] FCAFC 103.

On 9 January 2025 we reported the decision of the Australian Federal Court, Hampden Holdings I.P. Pty Ltd v Aldi Foods Pty Ltd.[1] In that case, Moshinsky J found that certain packaging used by Aldi for its "Mamia" brand infringed the copyright that subsisted in certain "Baby Bellies" packaging owned by Hampden Holdings.

Moshinsky J also held that Aldi's infringement was flagrant, declaring that “Aldi sought to use for its own commercial advantage the designs that had been developed by a trade rival. Although Aldi may have intended, if possible, to avoid infringement and legal liability, it took the risk that its use of the BELLIES designs would exceed what the law allows. I consider Aldi’s conduct to be flagrant".

As we predicted, Aldi appealed the finding of infringement to the Full Court of Appeal of the Federal Court (FCAFC), and Hampden Holdings cross appealed, arguing that Moshinsky J did not go far enough.

Appeal to the FCAFC

The appeal judgment issued on 19 August 2026.[2] The judgment at first blush reads as a partial success for both appellant and cross-appellant.  However, on closer inspection, the overall result clearly favours Hampden.

The FCAFC (comprising Burley, Moore and Owens JJ) confirmed that certain Aldi works were infringing, but – importantly – disagreed with Moshinsky J’s approach to assessing similarity (allowing Aldi’s appeal in part), which led to an even broader set of infringing works (allowing Hampden’s cross-appeal in part).

The FCAFC also upheld Moshinsky J's finding of flagrant infringement, which now applies to the broader set of infringing works.  

While refusing to award appellate costs to Hampden Holdings due to each party’s partial success, the FCAFC specifically noted that Aldi had “gone slightly backwards overall”.

Moshinsky J's approach to “substantial similarity”

The primary judge found that certain Aldi works reproduced a qualitatively substantial part of the "layout and design elements" contained in Baby Bellies works, including the oval shaped cartoon character with a light-coloured belly.

The FCAFC described this phrasing (i.e., layout and design elements) as the judge’s "own taxonomy", and that the judge "abstracted" the "precise pictorial or textual form of the element present on the Hampden Work to something more general” (at [32]).

Despite acknowledging that Moshinsky J’s consideration of design elements was relatively thorough, the FCAFC overruled the trial judge’s approach, holding that whether a “substantial part” of a work has been copied should not be assessed by reference to his “abstracted” features.  Rather, "one must have regard to all of the similarities (which may not be identical as to any part), which might include style, technique, colour, and visual or design elements, and then consider whether those similarities constitute a substantial part of the copyright work" [81] (emphasis added).

The FCAFC went onto find that Moshinsky J did not properly consider the evidence of originality in the specific aspects of the work found to be reproduced. This is particularly important where copying involves “style” or “technique” of the work [84], which has been highlighted in cases involving musical[3] or artistic[4] techniques.

For instance, consider a particularly original “riff” or “brushstroke technique”.  Consider also, works involving significant skill and labour in their creation.  Where the impugned work incorporates such particularly original or laborious elements, notwithstanding other differences in the side-by-side comparison, it may be taken to infringe [87],[95].

The FCAFC view is well founded.  While “abstracting” certain features prior to undertaking the “substantial part” analysis may save time (or may simply be a useful shorthand), it is also conceivable that such an approach could result in important and original details being excluded from the side-by-side comparison or being given less attention than they deserve.  Indeed, the FCAFC found that Moshinsky J’s focus on the “small, oval shaped cartoon character, with large, light-coloured belly” meant that he incorrectly put aside the specific cartoon character in question, and thereby neglected the distinctive visual features contained within it, such as the writing in its belly.

In short, the similarities and differences in the various elements must be analysed in detail, rather than by reference to shorthand abstractions.

Despite the clarification in approach, it is debatable whether, had Moshinsky J been given the opportunity to apply the FCAFC’s approach (or use their preferred language), he would have made different infringement findings, given that the side-by-side comparison will naturally involve “questions of degree” [101].

As noted in our first report, to our eye there were elements of similarity to certain works for which no finding of infringement was made.  Also, as noted by the FCAFC, the digital reproductions in the judgment do not capture the precise details, including particular colour shades, to which the court had access [11].  These remarks reiterate the importance of good evidence in such cases and the close visual comparisons to be made.

So what works were infringing?

In our first report, we provided side-by-side comparisons of the three Aldi works that Moshinsky J held infringed certain Hampden Holding works. 

We now set out below the five works that the FCAFC considered to be infringing – noting two additional infringements to those identified by Moshinsky J at first instance.

The works that were not considered to be infringing are:

Obiter on "get-up"

The Court stated that "Copyright does not protect a style or get-up. Copyright protects a particular form of expression, and considering whether copyright is infringed requires consideration of whether there has been a reproduction of a substantial part of that particular form of expression" [104]. 

The Court's statement will likely be drawn on in response to demand letters that claim “get-up” or “look and feel” has been unlawfully adopted.

The obiter is, perhaps, overly simplistic and should be considered in the context of the overall findings of the case.  While a work’s “get-up” (i.e., it's total visual look) is typically associated with the passing off action which requires a different assessment, the same get-up may also comprise original artistic works which form the basis for a copyright infringement claim – which comes back to the question of whether the allegedly infringing work is “objectively similar” to the prior original work.[5]

Welcome clarity for brand-owners

The FCAFC judgment does not break new ground.  It is an example of rigorous application of the copyright analysis, and in indication of how, when it comes to determining infringement of an artistic work, in borderline cases “minds can reasonably differ”.[6]

Thanks to Aldi, we have clarity as to how Courts should determine whether a work as reproduced a “substantial part” of an earlier work.

It is also reassuring to see the FCAFC uphold the finding of flagrant infringement, noting that Aldi, while seeking to stay on the right line to avoid legal liability, did “set out to obtain the benefit of somebody else’s intellectual and creative effort” [14]. This was despite the court’s reluctance to specifically consider the principle of animus furandi (intention to steal) which still awaits specific application by the Australian courts.

The look-a-like industry on shaky ground

And, on that point, the tide does appear to be turning on Aldi.  

Having largely resisted intellectual property lawsuits from competitors for years, including in 2001[7] and 2017[8], Aldi now finds itself on the back foot in both Australia and the United Kingdom.  On 20 January 2025, the Court of Appeal for England and Wales found that Aldi’s “Taurus Cloudy Lemon Cider” (shown here: 

 ) took unfair advantage of, and was an infringement of, Thatcher’s registered trade mark no. 3489711 for , in class 33 for “cider, alcoholic beverages, except beer”[9] Aldi’s application to appeal this decision to the United Kingdom Supreme Court was refused.[10]

Unsurprisingly, in reaching its conclusion, the Court held that Aldi chose the Thatcher’s product as “the benchmark” for the design of Aldi’s packaging.[11]; The same “benchmark” wording appears throughout the Hampden decisions.

Companies that peddle in lookalikes, or who are considering an “emulated” or “inspired by” approach to branding, would do well to remember that their conversations around product “benchmarking” and “architecture” may one day end up in open Court, and may be subject to arguments around animus furandi (intention to steal) and flagrancy of infringement.

[2] Aldi Foods Pty Limited v Hampden Holdings I.P. Pty Limited [2026] FCAFC 103, accessible here: https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2026/2026fcafc0103