Background
Thatchers is a long-established cider and alcoholic beverage producer and owner of UK Trade Mark No. 348971 (shown below) registered in respect of “Cider; Alcoholic beverages, except beer” in class 33, (the “Trade Mark”).
Thatchers introduced its canned “cloudy lemon cider” in February 2020, which it marketed and sold under the Trade Mark by use of the mark in advertisements, on the cans themselves and on the packaging of 4-can packs.
Aldi is a well-known German supermarket chain with nearly 1,000 UK stores. Aldi sells – amongst other things - its own brand of alcoholic ciders under the mark “Taurus”. In May 2022, Aldi introduced a cloudy lemon cider under its Taurus brand, available in 4-can packs (the “Aldi Product”).
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| The Trade Mark |
The Aldi Product |
IPEC Decision
In September 2022, shortly after the release of the Aldi Product, Thatchers commenced proceedings in the Intellectual Property Enterprise Court (“IPEC”) against Aldi for infringement of the Trade Mark claiming likelihood of confusion, unfair advantage or detriment, as well as passing off. The claim was initially dismissed on the basis that:
- There had been no misrepresentation by Aldi, negating a passing off claim;
- There was no likelihood of confusion given the low degree of similarity between the Trade Mark and the sign used by Aldi on the Aldi Product - THATCHERS and TAURUS weren’t similar and the similar elements were either descriptive (the text), ubiquitous (the limited colour palette), or commonplace (lemons on lemon-flavoured beverages).
- There was no unfair advantage or detriment - Aldi had not intended to exploit the Trade Mark’s reputation or goodwill, nor had the Aldi Product objectively done so, and Thatchers’ reputation had not been tarnished. Aldi had aimed to create a sign that maintained a ‘safe distance’ from Thatchers’ Trade Mark, effectively using lemons and lemon leaves to indicate that it was a lemon cider product.
Thatchers appealed.
Court of Appeal Decision
In identifying the signs to be compared, the Court of Appeal found that the IPEC judge had made an error in finding a difference between the Trade Mark and the sign used by Aldi based on the Trade Mark being two-dimensional and the Aldi Product being three-dimensional. This had an impact on the finding of similarity, as did the judge’s incorrect disregard for how Thatchers had used the mark. Together these findings meant that the assessment of low similarity was flawed and should have been considered somewhat greater than it was.
Thatchers also argued that that the judge’s analysis of Aldi’s intention was flawed in confusing an intention to take advantage with an intention to deceive, making a rationally insupportable finding that Aldi had not significantly departed from its house style for its Taurus ciders and wrongly discounting faint horizontal lines present in both the Trade Mark and the sign used by Aldi. Finding for Thatchers, the Court of Appeal found that Aldi had intended the Aldi Product to remind consumers of the Trade Mark, suggesting the Aldi Product was ‘like the Thatchers product but cheaper’. Aldi intended to take advantage of the reputation of the Trade Mark in order to assist it to sell the Aldi Product. Thatchers contended that this was a classic case of unfair advantage by a transfer of image (from the Thatchers Product and the Trade Mark to the Aldi Product and its appearance in the mind of consumers). The judge gave no reason for rejecting that claim, which amounted to error of principle, and the Court of Appeal in its assessment considered this to be “squarely within” that description. There was no reason to depart from earlier EU case law on this point (specifically L’Oreal SA v Bellure [2010]).
This intention to leverage the Trade Mark’s reputation had been evident from social media evidence (consumers had referred to the Aldi Product on social media as a “Thatchers Lemon cider rip off”) and Aldi’s substantial sales without promotion of its product. Without evidence that Aldi could have achieved similar sales without use of the sign on the Aldi Product, it was inferred that Aldi had gained an unfair advantage. Aldi profited from Thatchers’ investment rather than competing on quality, price, or its own promotional efforts. Furthermore, Aldi’s use of the sign was neither descriptive nor in accordance with honest practices.
Comment
The Thatchers and Aldi dispute has ignited significant discussion among trade mark experts, a point which was raised in the decision itself. Critics of the initial decision argue that it exposed the UK’s weaknesses in safeguarding brand owners from ‘lookalike’ packaging. Conversely, supporters commended it for encouraging competition and reducing consumer prices. The Court of Appeal’s decision marks a significant victory for Thatchers and will be welcomed by brand owners for providing clarity on the circumstances when lookalike products cross the line from healthy competition to inappropriately exploiting a trade mark.
Thatchers Cider Company Limited and Aldi Stores Limited [2025] EWCA Civ 5
For more information or if you have any questions, please contact Emily Roberts, Chloe Perea Poole or another member of the IP team.
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