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The Court of Appeal has recently ruled in favour of Thatchers Cider Company Limited (“Thatchers”) in a significant trade mark case against Aldi Stores Limited (“Aldi”), overturning an earlier decision of the High Court. The dispute related to the packaging of Aldi’s “Taurus Cloudy Lemon Cider”, which Thatchers alleged unfairly imitated the design of its own popular Cloudy Lemon Cider, thus taking advantage of its established reputation. This ruling provides a boost to brand owners and serves as a clear warning to companies about creating lookalike products.

Background

Thatchers is one of the UK’s leading independent cider producers. In 2020, it launched Cloudy Lemon Cider, which featured distinctive packaging with whole lemons, green leaves, and a creamy-yellow background. Thatchers invested over £2.9 million in advertising and achieved impressive sales of nearly £30 million by 2023. It obtained a UK registered trade mark with effect from 14 May 2020 (shown on the left below) for the device which appears on the packaging of the product (shown centre and right below).

In 2022, Aldi introduced its own-brand Taurus Cloudy Lemon Cider, a seasonal product with packaging that used lemons and a similar colour scheme to Thatchers (shown below).

In the writer’s view the packaging of Aldi’s product bears a striking resemblance to Thatchers’ trade mark (and its related packaging). Although Aldi’s branding contains some differences – it featured a bull’s head logo and the Taurus name, Thatchers argued that the overall appearance of Aldi’s product created an association with their own, giving Aldi an unfair advantage.

The High Court dismissed Thatchers’ claim for trade mark infringement and passing off, essentially finding that the similarities between the two products were minimal and that there was not an active misrepresentation by Aldi or a likelihood of public confusion. However, Thatchers appealed the lower court’s finding that Aldi’s packaging did not take unfair advantage or tarnish the reputation of Thatchers’ trade mark, and it was this “unfair advantage” claim that was successful in the Court of Appeal. The court identified several reasons for overturning the earlier decision.

Outline of the law relating to trade marks with a reputation

Under the Trade Marks Act 1994 (“TMA”), trade marks protect distinctive signs that are capable of distinguishing the goods or services of one undertaking from another.

Section 10(3) TMA protects protection for trade marks with a reputation. The section applies even if the public would not be likely to be confused by the infringing use if certain criteria are met including:

  • The trade mark must have a reputation in the UK (which essentially means that it must be known to a significant part of the public).
  • The allegedly infringing sign must be sufficiently similar for the relevant public to create a link between the trade mark and the allegedly infringing sign.
  • The use of the sign must take unfair advantage of, or be detrimental to, the distinctive character or repute of the trade mark.
  • There must be no “due cause” for the use of a similar sign.

At first instance, while the court accepted Thatchers’ trade mark had a strong reputation, it was held that Aldi’s Taurus Cloudy Lemon Cider did not create the necessary link in consumers’ minds. The judge placed significant weight on the differences to the trade mark contained in Aldi’s branding, including using the bull’s head logo and the Taurus name, which the Judge said was sufficient to differentiate Aldi’s product.

Why Thatcher won on appeal

The Court of Appeal took a different view. It said that the evidence indicated that consumers had connected the two products. Social media comments described Aldi’s product as a “rip-off” or “knock-off” of Thatchers’ cider. This demonstrated that Aldi’s design created a mental link to Thatchers’ branding in consumers’ minds, even if they were not confused about the product’s origin.

Another significant factor was the internal documents and emails from Aldi, which revealed that Thatchers’ product had been explicitly used as a benchmark during the design process. Emails from Aldi’s team instructed designers to create a product that was a “hybrid of Taurus and Thatchers” prominently featuring lemons. While Aldi argued that using lemons and leaves is common for lemon-flavoured drinks, the court concluded that these design choices were excessive and deliberately imitated Thatchers’ packaging. This allowed Aldi to benefit unfairly from Thatchers’ reputation and marketing efforts without incurring the equivalent expense. Finally, the Court of Appeal pointed to Aldi’s inability to provide a valid reason, or “due cause,” for designing their product in such a similar manner to Thatchers which further weakened their argument.

Conclusion

The Court of Appeal’s decision has been welcomed by brand owners who for years have seen supermarkets come up with very similar-looking products to their own. Notably, where a brand has a strong reputation, the case serves as a good example that they can act against lookalike products, even without consumer confusion and this ruling highlights the risks for retailers launching private-label goods which closely mimic established brands.

Discount supermarkets have habitually got away with designing and selling lookalike products and have typically relied on the argument in previous cases that the public are perfectly aware that the products are not produced by a big brand – they just look like them. However, increasingly we are seeing that there is a line that can be crossed, and Aldi did so here.

This case brings to mind another case involving Aldi in 2024 in which the Court of Appeal held that Aldi had infringed Marks & Spencer’s rights through the sale of a festive gin-based liqueur in a bottle which was very similar to M&S’s bottle (containing its own gin-based liqueur) which was protected by registered designs.

However, since the Thatchers judgment we have seen some criticism of the decision along the lines that it serves to stifle competition, increase prices and limit consumer choice. The obvious response to this is that the judgment does not restrict competition which is fair.

Our Intellectual Property Disputes team specialises in brands-related litigation. For further information, please contact Simon Miles or any of our partners in the Intellectual Property team.

 

Resources

Thatchers Cider v Aldi Stores [2024] EWHC 88 (IPEC)

Thatchers Cider v Aldi Stores [2025] EWCA Civ 5

Trade Marks Act 1994

L’Oréal v Bellure (C-487/07)

Intel v CPM (C-252/07)

Specsavers v Asda (C-252/12)

Please note that this blog is provided for general information only. It is not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content of this blog.

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