Does Aldi v Thatchers leave a sour taste for IP rights holders?
Everybody’s favourite budget supermarket, Aldi, is back in the news following a court battle with Thatchers Cider, in which Thatchers alleged that Aldi infringed its trade mark by reference to the similarity of Aldi’s cloudly lemon cider in its Taurus range to Thatchers’ canned cloudy lemon cider. Here, Beyond Corporate’s Georgia Smith and Molly Hackett look at Thatchers’ claim against Aldi and explain what the judgement means for brands looking to protect their intellectual property.
Thatchers brought a claim against Aldi on the basis that the overall appearance of the Aldi cider is ‘highly similar’ to its cloudy lemon cider and the Court should infer that Aldi ‘intentionally mimicked’ the appearance of its product when designing the appearance. In doing so, it was alleged that Aldi intentionally set out to cause a link between the products in the minds of customers and take unfair advantage of Thatchers’ reputable trade mark.
It was submitted by Thatchers that although the Aldi cider stated it is ‘Made from Premium Fruit’, it has no real lemons in it, which is deceptive to customers and detrimental to the reputation of Thatchers, who for the avoidance of doubt, use real lemons.
Her Honour Judge Melissa Clarke, sitting in the High Court, was invited to conduct a blind taste test between the two. Perhaps unsurprisingly, the judge commented that she was no expert in the area, but found the taste to be very similar.
Whilst Aldi accepted that Thatchers’ product was used as a ‘benchmark’ when developing its product, it denied any trade mark infringement.
In light of increasing cases of ‘copycat’ products appearing on the market and the requirement for brands to protect substantial goodwill and reputation, the question is, did Aldi cross the line?
Handing down judgment on 24 January 2024, the judge recognised the similarities in overall taste and appearance between the ciders, but dismissed Thatchers’ claim for trade mark infringement, finding that there was a ‘low degree of similarity’ between the products and there is ‘no likelihood of confusion’ from customers.
It was held that customers know they are drinking an Aldi product and if they do not like the taste of it, or assume it was made with real lemons because of the ambiguous tag-line, the consumer may distrust Aldi, but not Thatchers. This approach appears problematic, as it assumes that the consumer is accustomed to and familiar with both brands and their products, discounting the possibility that a customer may try the Taurus product, decide they do not like it and never try any other cloudy lemon cider products again (like Thatchers!)
For discount brands looking to “sail close to the wind” and benchmark against other established brands’ products, the judgment will prove a useful precedent as to how far brands can really go with incorporating similarities into their own product offering. It will be interesting to see if and how the market changes in response to such a finding in this case.
But what does this mean for brands looking to protect their intellectual property?
Brands are minded to consider the distinctiveness of the imagery and designs when seeking registration of its product labels. Whilst elements of the Thatcher’s product label are descriptive (i.e. lemons for a lemon cider) the judge recognised that, as a whole, the ‘get up’ of the Thatchers mark was of enhanced distinctive quality and reputation (which is a positive find). Further, it was found that the appearance of the two products established a mental link between the ciders in the eye of the consumer.
Contrary to these two substantial findings, the overall judgment of no unfair advantage appears problematic, leaving a sour taste for brands seeking to enforce their rights in instances of copycatting and infringement.
What’s the point if it can be ripped off? Rights holders may feel that such a finding stifles innovation for distinctive and unique designs, however brands should not be deterred from registering their product labels (given that those which are registered have a much better likelihood of success when enforced, than those relying on passing off!)
It is no wonder Thatchers is considering an appeal…
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[This blog is intended to give general information only and is not intended to apply to specific circumstances. The contents of this blog should not be regarded as legal advice and should not be relied upon as such. Readers are advised to seek specific legal advice.]