Aldi has been accused of achieving “extraordinarily high” sales of a cider by copying Thatchers and piggybacking on its marketing investment.
In a trademark infringement claim that has reached trial at High Court today, Thatchers is arguing Aldi has taken “unfair advantage” of its brand reputation by copying elements of its packaging.
Doing so helped Aldi achieve sales, disclosed by the discounter, of over £1.4m in two years despite there being no evidence of any marketing spend, according to Thatchers’ skeleton argument.
Thatchers, in contrast, spent £3m on marketing between 2020 and 2022.
Thatchers is also gunning for Aldi’s product development process of “benchmarking” against the market leader. In taking Thatchers as the benchmark to copy on taste, Aldi had taken unfair advantage of its more involved design process, which included “a comprehensive market analysis, feedback, and taste testing process, using over 25,000 litres of the initial cloudy lemon product”, it said.
Judge Melissa Clarke is invited to “conduct a taste test of the Thatchers product and the Aldi product” to “make conclusions as to the taste and composition differences”.
“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,” Thatchers’ skeleton argument says.
“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 accuses 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.
“The core of the distinctiveness in the figurative mark is in the dominant component, and brand name, ‘Thatchers’,” Aldi’s skeleton argument says. “All other aspects of the figurative mark are descriptive or at most anodyne.
“It is denied, as a matter of principle, that there can be any riding on the coat-tails of the reputation of the figurative mark when the only congruence is in non-distinctive or anodyne elements.”
Geoff Steward, head of litigation at IP law firm Stobbs, said: “Aldi are essentially arguing that the Thatchers’ packaging does not serve as an indication of origin and that the only indicator of origin is the brand name.
“Thatchers are arguing that their packaging, comprising a number of non-distinctive elements, for example lemons, which in combination have acquired distinctiveness, does indeed serve as a trademark.”
Lidl used an unfair advantage argument in a successful trademark infringement claim against Tesco earlier this year. The High Court ruled in April that Tesco was taking unfair advantage of Lidl’s reputation as a discounter with its Clubcard Prices logo, which uses a yellow circle design that is similar to Lidl’s branding. In the event Tesco loses at appeal, it faces being ordered to remove eight million signs from stores.