Aldi has redesigned the cans and packaging of its Taurus Cloudy Lemon Cider, as the High Court considers whether the old design infringed Thatchers’ trademarks.
A judgement is due on 24 January on whether Aldi has been taking ‘unfair advantage’ of Thatchers’ brand reputation by copying elements of its Cloudy Lemon Cider can.
Thatchers has argued that copying its product helped Aldi achieve sales, disclosed by the discounter, of over £1.4m in two years, despite there being no evidence of any marketing spend by Aldi. In contrast Thatchers spent £3m on marketing from 2020 to 2022.
In written arguments in High Court in November, the cider brand said Aldi’s “large sales figures were achieved by reason of the investment Thatchers had made in the Thatchers product” which “Aldi has exploited, free ridden upon, and taken unfair advantage thereof”.
Thatchers has also accused Aldi of ‘passing off’, arguing the discounter’s product is “likely to misrepresent to consumers some commercial connection to Thatchers”.
The cider cans Thatchers is suing over are now listed as out of stock on Aldi’s website. However, the discounter’s Taurus Cloudy Lemon Cider is still listed as available on another Aldi webpage, where it is shown in different cans.
Aldi’s design now features images of slices of lemon, rather than whole lemons, as found on Thatchers’ cans. Green leaves, also on Thatchers cans, have now gone from Aldi’s.
Lemons and leaves are at the centre of the legal battle. Thatchers has argued its brand reputation extends to the appearance of the lemons and leaves on it cans. Aldi has denied passing off and taking unfair advantage, arguing the core distinctive element of Thatchers’ packaging is instead its brand name, which is not found on its own product.
According to Geoff Steward, head of litigation at IP law firm Stobbs, the unfair advantage element of the argument could “open the floodgates” for more copycat claims against Aldi because “if Thatchers can get home on it then other brands can get home on it”.
Aldi said the entire Taurus Cider range had undergone a redesign in line with standard practice to periodically refresh packaging.
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