B&M has risked repeating a mistake made by Aldi by selling a gin liqueur strikingly similar in appearance to one at M&S, trademark lawyers have said.
Like M&S’s popular Christmas gin liqueur, B&M’s doubles up as festive décor. It has a light-up feature and edible gold flakes in the bottle to create a snow globe effect. The new product drew comparisons with M&S’s in the national press this week, with one headline calling it “almost identical”.
M&S has proved fiercely protective of its festive gin liqueur and last year successfully sued Aldi over a copycat version. Aldi was found in High Court to have infringed M&S’s registered designs with its similar-looking Infusionist gin liqueur.
“We take intellectual property seriously and will always defend our rights against infringement,” M&S said at the time.
An M&S Spiced Sugar Plum Light Up Snow Globe gin liqueur is currently listed on Ocado, with a design depicting a winter scene to add “festive sparkle”.
M&S is also selling a Clementine Gin Liqueur Snow Globe this year.
B&M’s gin liqueur comes in either Clementine or Winter Berries flavour and features a gonk character.
“B&M’s new gin liqueur, complete with a light-up effect, gold flakes and a snow globe, is daringly close in appearance to M&S’s product,” said Mark Caddle, partner and trademark attorney at intellectual property law firm Withers & Rogers.
“Big retailers are increasingly hot off the mark in taking action to protect their trademarks,” he said. M&S’s pursuit of Aldi had shown there could be “serious repercussions”.
“Clearly, this warning has not deterred B&M,” Caddle added.
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John Coldham, IP partner at Gowling WLG, said: “The press appears to be of the view that it is very similar to the M&S one, but we can only assume that B&M has studied the findings of the court carefully and decided that it is far enough away.
“M&S does not have a monopoly on ‘snow globe gins’, but it does have a registered design that the court has interpreted reasonably broadly. Time will tell whether M&S picks another fight in this area.”
B&M has boasted its product costs “a fraction of the price compared to other retailers”. However, at £14 for 500ml, the price works out at £28 per litre, while M&S’s Spiced Sugar Plum flavour is listed on Ocado at £15 for a 700ml bottle, or £21.43 per litre.
M&S’s Clementine gin liqueur is £20 for 700ml, or £28.57 per litre.
“It’s interesting that B&M has decided to price its own gin at effectively the same price point as M&S,” said Coldham. “It is almost as if it is courting the publicity by picking a product so closely associated with M&S and its attack on copycat products.”
Neither B&M nor M&S provided a comment.
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