‘There’s nothing cloudy about this judgment’ says Aldi spokesperson

Thatchers brought a claim against Aldi alleging trade mark infringement and passing off. Aldi denied infringement and additionally sought to rely on the defence that any use of the Mark was descriptive of characteristics of the goods offered i.e. there are lemons on the Sign because it is a lemon cider and Thatchers cannot monopolise this. 

Low Degree of Similarity

The Court stated that while the Aldi Product resembled the Mark to some extent, the main elements of each sign were different: “THATCHERS CLOUDY LEMONADE CIDER” for the Mark and the “TAURUS” brand with a bull’s head for the Sign. Although both products depicted whole lemons and green leaves, the Court asserted that the style and arrangement of the lemons, and the treatment of the leaves, were different. 

The Judge was also requested to do a blind taste test and said: “I am no expert and have never tasted cloudy lemon cider before. I found the taste of the two products to be very similar, but I accept they are different.”

No Likelihood of Confusion

The Court acknowledged Thatchers’ strong reputation and noted that Aldi shoppers are aware of third-party brands in Aldi stores so although they would not expect to see the Thatchers Product in Aldi, they would not be surprised to see something which they perceived as or mistook to be the Thatchers Product. Despite high sales volumes for both products, the Court did not find any evidence of direct or indirect confusion. In addition, the use of yellow, cream and green colours was common for lemon drinks. Hence, it is unlikely the average consumer would be confused leading to the failure of the claim.

Unfair Advantage or Detriment

A person can infringe a registered trade mark if their use takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the trade mark. The Court confirmed that Thatchers has a recognisable reputation across the UK and there were online comments from consumers likening the Aldi Product to a “rip off” of Thatchers’ Product.

Despite one of Aldi’s witnesses acknowledging they had used Thatchers product as a ‘benchmark’, he said that adding lemons to the Sign was to convey to consumers that it was a lemon cider product. The Court ultimately decided that there was no unfair advantage (as there was no intention to do so, nor was it the objective effect of any link between the products), nor was there any detriment. Consequently, Thatchers’ claim for detriment was dismissed.

Passing off

In order to meet the requirements for passing off you must have goodwill, a misrepresentation that leads to deception or likelihood of deception, and damage resulting from this misrepresentation. It was held that there was no evidence that any consumers believed the Aldi Product is that of Thatchers and so there was no likelihood of confusion and no misrepresentation. Therefore, the passing off claim was unsuccessful and Thatchers’ claim was dismissed.

This is not the first, and will likely not be the last, time Aldi has been subject to legal proceedings as a result of their branding. However, this case provides a useful reminder of the difficulties when pursuing Aldi, and other similar supermarket brand products, for trade mark infringement and passing off.

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 Zara.Khan@howespercival.com.

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