Further to our previous article, the Court of Appeal has now ruled in favour of Thatchers Cider Company (“Thatchers”) in its trade mark infringement case against Aldi. This decision overturns the earlier judgment by the Intellectual Property Enterprise Court (“IPEC”), which had dismissed Thatchers’ claims.
The appellate court found that Aldi’s “Taurus Cloudy Cider Lemon” product unlawfully took unfair advantage of Thatchers’ registered trade mark for its Cloudy Lemon Cider.
Thatchers, the largest family-run independent cider producer in the UK, launched its Cloudy Lemon Cider in 2020, securing a registered trade mark for its distinctive packaging design.
Aldi, which is well known for its television advertisements featuring the slogan “Like Brands, Only Cheaper”, subsequently introduced a competing product, Taurus Cloudy Cider Lemon, which bore notable similarities in packaging.
Thatchers initiated legal proceedings, alleging that Aldi’s product infringed upon its trade mark and constituted passing off.
In January 2024, the Court dismissed these claims, concluding that the similarities were insufficient to mislead consumers or damage Thatchers’ brand.
Upon review, the Court of Appeal identified critical errors in the previous judgment. The appellate court emphasized that IPEC had improperly evaluated the similarity between the trade marks by focusing solely on the two-dimensional registered mark against elements of Aldi’s three-dimensional product packaging. The correct approach should have compared the two-dimensional aspects of both designs. This misstep led the IPEC to underestimate the degree of similarity between the two products.
Furthermore, the Court of Appeal highlighted that Aldi’s packaging design represented a significant departure from its usual “Taurus” brand presentation. Traditionally, Aldi’s “Taurus” products featured white text on a black background with coloured accents. In contrast, the “Taurus Cloudy Cider Lemon” used black text on a pale yellow background, accompanied by prominent images of lemons and leaves—elements closely associated with Thatchers’ design. The intentional design choice suggested an effort by Aldi to invoke Thatchers’ product in consumers’ minds, this is supported by the fact that an Aldi employee sent an email to their brand and marketing agency and stated “can we please see a hybrid of Taurus and Thatcher’s [sic] – i.e. a bit more playful – add lemons as Thatcher’s etc”.
The Court of Appeal considered social media commentary as an indication of consumer perception. Comments referring to Aldi’s product as a “Thatchers Lemon cider rip-off” and “very good Thatchers cider rip-off” demonstrated that consumers recognized the resemblance and perceived Aldi’s product as a lower-priced alternative to Thatchers’ cider. The Court of Appeal inferred that Aldi’s substantial sales of the product, achieved without significant promotional efforts, were attributable to this association. There was no evidence that Aldi spent any money promoting the Aldi product.
This judgment is in line with the principles established in L’Oréal SA v Bellure NV [2009] as trade mark infringement can occur even in the absence of consumer confusion if a party takes unfair advantage of the reputation or distinctive character of a well-known mark.
The Court of Appeal concluded that Aldi’s actions amounted to “riding on the coat-tails” of Thatchers’ trade mark, thus taking unfair advantage of its established reputation. This is a cautionary tale for retailers considering the introduction of products with packaging that closely resembles established brands. However, there is still a possibility that this decision may be appealed again to the Supreme Court.
For further information, or if you wish to discuss any trade mark related matter, please contact Zara Khan on 01604 222103 or by email at [javascript protected email address].
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