A court ruling that Aldi infringed Thatchers’ trademark could “open the floodgates” for similar cases, meaning retailers producing brand lookalikes may have to remove the products or face legal action.
A court ruling that Aldi infringed Thatchers’ trademark could have a “dramatic impact” on the number of lookalike products in stores, says a legal expert.
The Court of Appeal today (20 January) ruled that the discount supermarket had infringed cider brand Thatchers’ trademark with its Taurus Cloudy Lemon cider product, which bears striking similarities to the Thatchers product of the same name.
This overruled a previous judgement from the High Court that had found there was “no likelihood of confusion” between Thatchers’ product and the Aldi equivalent. However, in the new Court of Appeal ruling, the judge, Lord Justice Arnold makes clear that Aldi has infringed on the trademark simply by “reminding” consumers of Thatchers with its packaging (or “sign”), rather than promoting confusion between the two.
“It is clear that Aldi intended the sign to remind consumers of the trademark in order to convey the message that the Aldi product was like the Thatchers product, only cheaper,” he wrote in his judgement remarks.
I think it’s going to have a dramatic impact on the appearance of equivalent products in all supermarkets.
Geoff Steward, Addleshaw Goddard
That “Aldi did not intend consumers to be deceived, or even confused, as to the trade origin of the Aldi product does not detract from this,” he wrote.
The court found that Aldi achieved “substantial” sales of its cloudy cider product in a short period of time, “without spending a penny on promotion”. As there was no evidence to suggest that Aldi could have achieved this feat without using the packaging bearing the similarity to the Thatchers product, the court ruled it was a “legitimate inference” to assume that this advantage was obtained through it being reminiscent of the brand’s product.
Aldi has indicated that it will appeal the verdict, stating it is “disappointed” with the Court of Appeal’s judgement.
“We think the Court of Appeal’s decision is wrong and we intend to appeal. Aldi offers exclusive brands as low-price alternatives to more expensive branded products,” a spokesperson said. “The High Court was clear that Aldi customers know what they are buying when they shop with us.”
‘Watershed’ case for lookalikes
Lookalike or “copycat” products are commonplace in British supermarkets. In particular, the discounters Lidl and Aldi produce many lines that have been noted for their similarity to well-known brands.
Provided today’s judgement is upheld if Aldi appeals, the ruling is “genuinely a watershed” moment for brands in protecting against lookalike products, says Geoff Steward, joint head of intellectual property and partner at law firm Addleshaw Goddard.
Speaking to Marketing Week, Steward says the judgement effectively means the Court has ruled “it’s unfair competition to mimic products in a way that is so close to a registered trademark”.
In 2023, the High Court ruled Tesco had copied rival Lidl’s logo to “deceive” customers with its Clubcard Prices loyalty proposition. But today’s ruling is notable in that it specifically applies to lookalike products.
An ‘own goal’ or the right decision? Experts react to Lidl’s victory over Tesco
Now any brand with a trademark registration for their packaging will essentially be “automatically” able to make an unfair advantage claim if a rival creates a product bearing a resemblance, says Steward.
He says that this ruling could “open the floodgates” for similar cases. However, again provided Aldi does not successfully appeal the case, his opinion is that it’s likely many of these cases would be settled outside of a courtroom and resolved commercially, given the clearcut nature of the ruling.
The ruling today could mean many copycat products may have to disappear from shelves or face legal action.
“I think it’s going to have a dramatic impact on the appearance of equivalent products in all supermarkets,” says Steward.
