This practitioner article first appeared on the AJ Park website and has been reproduced with permission.
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.
Table of contents
- Appeal to the FCAFC
- Moshinsky J's approach to “substantial similarity”
- So what works were infringing?
- Obiter on "get-up"
- Welcome clarity for brand-owners
- The look-a-like industry on shaky ground
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.