Aldi is on a “sticky wicket” in its copycat battle with Thatchers, which could “open the floodgates” to other brands pursuing the discounter, according to a leading trademark lawyer.
In a trademark infringement claim that reached trial at High Court last week, Thatchers argued Aldi had taken “unfair advantage” of its brand reputation by copying elements of its Cloudy Lemon Cider can.
Doing so helped Aldi achieve sales, disclosed by the discounter, of over £1.4m in two years. This was despite there being no evidence of any marketing spend, Thatchers’ written argument said.
Thatchers, in contrast, spent £3m on marketing from 2020 to 2022.
“Has there been a benefit to Aldi? Aldi’s sales figures are very large in circumstances where there has been no marketing investment, or investment in a product development process other than simply copying the Thatchers product in both taste and appearance,” the document said.
“Thatchers says these large sales figures were achieved by reason of the investment Thatchers had made in the Thatchers product, and that Aldi has exploited, free ridden upon, and taken unfair advantage thereof.”
Thatchers also accused Aldi of “passing off”, arguing “it is entirely clear that sale of the Aldi product is likely to misrepresent to consumers some commercial connection to Thatchers”.
Aldi denies passing off and taking unfair advantage, arguing the core distinctive element of Thatchers’ packaging is its brand name, which is not found on its own Taurus Cloudy Cider Lemon.
Geoff Steward, head of litigation at IP law firm Stobbs, said: “The real battleground here is unfair advantage.
“The argument is basically that you abuse somebody else’s trademark if you freeride on the marketing effort. Thatchers spent £3m advertising that can, which is a good starting point.
“To me, Aldi are on a sticky wicket because what came out in cross examination was that Thatchers had done an awful lot of research over the course of a year into what they needed the can to look like to attract customers to a product they were not used to drinking – cloudy lemon cider.
“Aldi were trying to argue there was no value in the packaging and the only value was in the brand name.
“And the judge interrupted the Aldi counsel and asked why, if there was no value in it, the client had gone to such lengths to mimic it.
“To me, that was a fairly fatal intervention.
“We’ll have to see where the judge lands on it, but if Thatchers can get home on it then the floodgates will open because other brands can get home on it as well.”
A judgment is expected in January.