Thatchers appealing High Court defeat in trademark infringement claim against Aldi

Thatchers is appealing a High Court defeat in a trademark infringement claim against Aldi.

The case is due to be heard at the Court of Appeal on either 17 or 18 December, in the latest chapter in a two-year battle.

Thatchers’ lawsuit claimed Aldi had taken ‘unfair advantage’ of its brand reputation by intentionally mimicking elements of its Cloudy Lemon Cider, and creating a link in the minds of consumers that boosted the discounter’s sales.

The cider brand also accused Aldi of ‘passing off’, arguing the discounter’s Taurus Cloudy Lemon Cider was “likely to misrepresent to consumers some commercial connection to Thatchers”.

The claim was dismissed in the High Court in January, with the judge finding Aldi’s design had “caused a link in the mind of the average consumer” but “does not take unfair advantage of and is not detrimental to the repute of the trademark”.

The judge also found there was no likelihood of the average consumer being confused over which product they were buying, and the “low level of similarity” between the two products was owed to features that were “descriptive” or “commonplace”, such as “lemons on lemon-flavoured beverages”.

Read more: Why did Thatchers’ Aldi copycat claim fail in High Court?

Geoff Steward, intellectual property partner at law firm Addleshaw Goddard, said the Court of Appeal could examine whether the High Court judge had correctly applied the relevant legal test in determining that Aldi’s design had not taken unfair advantage despite other findings, including the creation of a link.

Based on the factual findings in the case so far, the Court of Appeal could “go the extra mile and say this is unfair advantage”, he added.

John Coldham, IP partner at Gowling WLG, said: “The Court of Appeal can’t change factual findings but they could say the judge has misapplied the test.”

Neither Aldi nor Thatchers provided a comment.

Read more: How discounters are getting away with copycatting food brands

Aldi redesigned the cans and packaging of its Taurus Cloudy Lemon Cider in January this year, while Thatchers gave its Cloudy Lemon Cider a new look in April.

It is latest in a long series of trademark infringement claims against Aldi. Last year the discounter was found in the High Court to have infringed M&S’s registered designs for a range of gin-based liqueurs.

That followed M&S suing Aldi over similarities between the discounter’s Cuthbert the Caterpillar cake and its own Colin the Caterpillar, a claim that ended out of court in a confidential agreement between the two in 2022.

Lidl has also had its share of disputes over own label products which take design cues from leading brands. The Grocer revealed in September that Tony’s Chocolonely had criticised Lidl for aping its chocolate bar’s irregularly shaped sections with a cheaper version.