The Court of Appeal has come down on the side of Thatchers Cider in a long-running trademark battle with Aldi.
The court has allowed Thatchers’ appeal against the Hight Court’s dismissal of its claim last year, finding that Aldi infringed the cider brand’s trademark rights for its Cloudy Lemon Cider.
The judgment, handed down this morning, is the latest chapter in a lawsuit launched by Thatchers in 2022 over Aldi’s lookalike Taurus Cloudy Lemon Cider.
Lord Justice Arnold said Aldi’s design closely resembled Thatchers’ trademark. He said Aldi had intended its design to remind consumers of Thatchers’ in order to convey the message that its product was similar but cheaper, and in doing so had “intended to take advantage of the reputation of the trademark in order to assist it to sell the Aldi product”.
He held that it had enabled Aldi to benefit by profiting from Thatchers’ investment in developing and promoting its product.
“Aldi was aware of the reputation of the trademark and intended to take advantage of it,” he said. “It should have appreciated that Thatchers would object. It had no justification for using the Sign… Overall, I conclude that Aldi’s use of the Sign was not in accordance with honest practices in industrial and commercial matters because it was unfair competition.”
Martin Thatcher, fourth generation cider maker at Thatchers, said: “This is a victory not just for our family business, but for all businesses whose innovation is stifled by copycats.
“We’re thrilled the High Court got to the core of the issue and cleared up any cloudy judgement.”
Aldi said it would appeal to the Supreme Court. “Aldi offers exclusive brands as low-price alternatives to more expensive branded products,” said a spokesman. “The High Court was clear that Aldi customers know what they are buying when they shop with us. We will continue to produce high-quality exclusive brands for our customers at unbeatable prices.”
He added: “We are disappointed that the Court of Appeal disagreed with the High Court in this case. We think the Court of Appeal’s decision is wrong and we intend to appeal.”
Thomas Chartres-Moore, head of the IP at law firm Stephens Scown, which acted for Thatchers, said: “Good luck with that.”
He pointed to a paragraph in the judgment that said: “Thatchers would probably have a remedy for Aldi’s use of the sign under many systems of law, including German law, in unfair competition law, even apart from trademark law.”
“It’s a fairly monumental paragraph, which kind of closes the door,” said Chartres-Moore.
“This appeal win is testament to the passion of our client, the hard work of my team and shows that there is a real value in brands investing in appropriate IP protection to fight off unfair copycat tactics.
“This case provides welcome authority on the circumstances in which a copycat product crosses the line from healthy competitive marketplace behaviour and into unfairly taking advantage of a trademark owner’s rights.”
Read more: Attack of the Clones: How discounters are getting away with copycatting
Anneka Dalton, partner at Taylor Wessing, said: “The Court of Appeal’s finding of infringement was based on one ground alone: that Aldi had taken unfair advantage of a trade mark with a reputation. Confusion, passing off and even detriment to repute had all failed.”
Geoff Steward, partner & co-head of intellectual property at law firm Addleshaw Goddard, called it a “good day for brands and trademarks”.
“This is a watershed moment for lookalikes, and a significant trademark law development which is long overdue,” he said.
“The scale and proximity of lookalike packaging in the UK is far worse than anywhere else in Europe. Armed with the correct packaging trademark registrations, UK brand owners can now sound the death knell on the practice of supermarket own-brands free-riding on their brand IP.”
Peter Vaughan, chartered trademark attorney and associate professor at Nottingham Law School, said: “The conclusion that Aldi was taking unfair advantage of the reputation in the Thatchers label may have wider repercussions on the industry. It was accepted by the parties that Aldi’s ‘benchmarking’ to leading competitor products, which included looking at the packaging, was a common industry practice.
“Parties will need to ensure they are benchmarking against more than one product. Here Aldi appears to have largely considered only the Thatchers product and sought only to come close to this.
“Aldi also found it difficult to avoid the allegation that they were targeting Thatchers as, in creating their own packaging, they departed from their normal ‘house-style’. Brands will need to be more cautious in doing this in future without a clear reason for doing so. This might mean there is a difference between a product in ‘one off’ ‘lookalike’ packaging and packaging intended to fit within an existing range.”
Aldi has been involved in a string of trademark disputes. Last year the supermarket was found in High Court to have infringed M&S’s registered designs for a range of gin-based liqueurs. That followed M&S suing Aldi over similarities between the discounter’s Cuthbert the Caterpillar cake and its own Colin the Caterpillar, a claim that ended out of court in a confidential agreement between the two in 2022.
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