Thatchers Cider Company Limited (“Thatchers”) has successfully won an appeal in trade mark proceedings brought against Aldi Stores Limited (“Aldi”) over a cider product, overturning an earlier decision of the High Court. B P Collins’ commercial litigation team examines the case and its impact.
What is a trade mark?
Trade marks protect distinctive signs that can distinguish the goods or services of one undertaking from another.
What is trade mark infringement?
Trade mark infringement occurs when:
- A registered trade mark is used in the course of trade without the owner’s consent. This can occur where the sign used by the infringer is identical (or similar) to the registered mark and relates to goods or services which are identical (or similar) to those for which the mark is registered.
- the sign used by the infringer is identical with or similar to the registered trade mark, the trade mark has a reputation in the UK, and the use of the sign, being without due cause, takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the trade mark.
In each case, the use of a sign in this way creates a likelihood of confusion on the part of the public between the infringer’s sign and the owner’s registered mark, and that can be detrimental for the owner of the mark.
Background to the dispute
Thatchers developed a lemon-flavoured cider which launched in February 2020 called “Thatchers Cloudy Lemon Cider” (“the Thatchers Product”). It registered a trade mark to protect the packaging under number 3489711. In May 2022, Aldi released a cloudy lemon cider called “Taurus Cloudy Cider Lemon” (“the Aldi Product”).
In 2022, Thatchers brought proceedings against Aldi, claiming that the packaging of the Aldi Product infringed the registered mark of the Thatchers product, and, that the sale of the Aldi Product constituted passing off. The claim centred on the likelihood of confusion caused between the two products where the overall appearance of the Aldi Product was highly similar to the Thatchers Product and that by being highly similar, Aldi had intentionally set out to cause a link in the minds of its customers between the two products. Thatchers claimed this was done to encourage customers to buy Aldi’s product, instead of theirs, and that Aldi were taking unfair advantage of the distinctive character of the Thatchers trade mark and its reputation in the UK, at detriment to it. Below are pictures of the products (the Thatchers Product on the left, and the Aldi Product on the right).
These images are obtained from official judgment ([2025] EWCA Civ 5 CA.2024.000463 Thatchers Cider Company Limited v Aldi Stores Limited Handed Down Judgment H.D 17th – 18th December 2024)
The Intellectual Property Enterprise Court dismissed the claim. It said that Aldi had not infringed the trade mark, and that it was not liable for passing off because Aldi had done enough with its packaging design to move sufficiently far away from the Thatchers mark. The court rejected the claim of a likelihood of confusion and even though there were visual similarities such as the colour scheme, the Court felt that overall, there was a low degree of similarity, and greater weight was placed on the differences between the more dominant aspects of both products, such as the words and symbols used on the packaging.
The Appeal
Thatchers appealed the High Court’s decision and argued that the Aldi Product is highly similar in its appearance to the Thatchers Product, and that Aldi took unfair advantage of, or caused detriment to, the distinctive character and reputation of Thatchers’ trade mark.
On 20 January 2025, the Court of Appeal ruled in favour of Thatchers, and addressed the below in its decision:
- Whether the Aldi Product gave rise to a link in the mind of the consumer; and
- Whether the Aldi Product gave rise to injury, namely unfair advantage or detriment to Thatchers’ mark.
The Court was satisfied that Aldi intended its product to remind consumers of the Thatchers Product, and that the Aldi Product was like it, only cheaper. The Court was also satisfied that the Aldi Product took advantage of the reputation of the Thatchers mark to assist its own sales, which were substantial in a short period with little marketing spend by Aldi to achieve that. This the Court held, was an unfair advantage as it enabled Aldi to benefit from Thatchers’ efforts in its development and promotion of the Thatchers Product, and Aldi failed to produce evidence that it would have achieved comparable sales without using a similar sign. The Court also noted that Aldi failed to provide a valid reason, or “due cause”, for designing its product in such a similar manner to Thatchers and internal documents and emails from Aldi which revealed that Thatchers’ product was used as a benchmark during the design process, weakened its defence.
The Impact
The Court of Appeal’s decision represents a significant victory for brand owners who have seen an increase in similar-looking products to their own appearing in supermarkets.
The decision stands as a stark reminder that the courts are willing to protect distinctive packaging and branding from imitation. It also underlines the importance of considering the overall impression of a product on the market, rather than looking at it in isolation. For businesses that invest heavily in the product development and brand identity, this decision provides assurance that their investment can be protected.
From an intellectual property perspective more broadly, the decision also serves as an important reminder to those with registered trade marks, or those looking to register a set of marks, that robust trade mark strategies should be employed to protect their interests. In this case, it was Thatchers’ use of comprehensive trade mark registrations that extended beyond logos, and which included packaging and other distinctive elements, that won them the appeal.
Businesses should continually look to review their branding strategies (whilst keeping an eye on what is going on in the market to identify potential infringements) to ensure those strategies are doing enough to protect against potential infringement. Similarly, businesses that are hoping to bring new products to the market to compete with established ‘players’, need to ensure that their products are sufficiently differentiated and are distinctive to avoid legal challenges. B P Collins’ commercial litigation solicitors can help with this.
At B P Collins LLP, our commercial litigation team advises businesses and individuals on intellectual property matters, including trade mark infringement and wider intellectual property disputes. To get in touch, please email enquiries@bpcollins.co.uk or call 01753 889995.
