Thatchers leaves Aldi bitter following successful lemon cider trade mark infringement appeal

Thatchers leaves Aldi bitter following successful lemon cider trade mark infringement appeal

In a watershed decision from the Court of Appeal, Aldi’s lemon cider has been found to infringe Thatchers’ trade marks for its own Cloudy Lemon cider.

Thatchers launched their ‘Cloudy Lemon’ cider (the Thatchers Lemon Cider) in 2020 and, in what would prove to be an important step for protecting their brand, registered a trade mark for their distinctive lemon-motif product packaging. Later, in 2022, Aldi launched their own lemon-flavoured cider (the Aldi Lemon Cider) which featured a very similar lemon motif.

Thatchers initiated legal action against Aldi in 2022, alleging that Aldi had infringed its registered trade mark for the Thatchers Lemon Cider getup and was passing off the Aldi Lemon Cider as being connected with Thatchers. At first instance in 2024, the IP Enterprise Court (IPEC) disagreed with Thatchers, deciding that no infringement had taken place despite clear evidence that Aldi had benchmarked the Aldi Lemon Cider to the Thatchers Lemon Cider. Thatchers appealed this decision.

Now, the Court of Appeal has overturned the IPEC’s ruling, agreeing with Thatchers. It found that the Aldi Lemon Cider infringed Thatchers’ registered trade mark under s.10(3) of the Trade Marks Act 1994 (TMA) by taking unfair advantage of the trade mark.

In reaching this conclusion, the Court of Appeal that the Aldi Lemon Cider “closely resembled” the Thatchers Lemon Cider in a way that “cannot be coincidental” when considered against the market for lemon-flavoured drinks as a whole. Going beyond mere market benchmarking, the Court of Appeal concluded that Aldi was seeking to “ride on the coat-tails” of Thatchers’ trade mark.

The evidence before the Court suggested that Aldi actively sought to create a link in consumers’ minds between the Thatchers Lemon Cider and the Aldi Lemon Cider, a link which conveyed to consumers that the Aldi Lemon Cider was “like the Thatchers [Cider]… only cheaper”. The Aldi Lemon Cider had been benchmarked not against the benchmark for other Aldi ciders, namely Strongbow ciders, which have a very different getup from the Aldi Lemon Cider. It was therefore reasonable to conclude that Aldi intended to take advantage of the reputation of the Thatchers Lemon Cider to assist with selling its own.

The Court of Appeal also considered that the volume of sales of the Aldi Cider in a such brief period of time, which had occurred without any advertising or promotion by Aldi, showed that Aldi must have obtained an actual advantage from the use of a sign similar to the Thatchers trade mark. That advantage was unfair because it enabled Aldi to profit from Thatchers investment in development and promotional rather than competing on the merits of the Aldi Lemon Cider and Aldi’s own promotional efforts.

This decision provides a clear tool in the armoury of brand owners when dealing with lookalikes.

Ultimately, it was Thatchers’ decision to register their packaging design as a trade mark that enabled them to protect their brand from the Aldi lookalike. This enabled Thatchers to bring a claim for registered trade mark infringement and therefore rely on the “riding on the coat-tails” arguments that would not be available in a passing off claim, which requires an element of misrepresentation to the public and ensuing confusion.

As the Court of Appeal noted in their judgment, Strongbow, against whom Aldi benchmark their Taurus cider brand, would not be able to bring a trade mark infringement claim against Aldi because they do not have a registered trade mark for the getup of their product. Much like M&S’s successful design right infringement claim against Aldi in Spring 2024, this decision shows that brand owners should consider registered right protection for key design features.

If you would like to speak to one of the team about this case or a related matter, please feel free to contact Shireen Peermohamed or Noonie Holmes.

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