Thatchers is arguing Aldi enjoyed commercial benefit by copying its Cloudy Lemon Cider, as a trademark battle between the two reaches the Court of Appeal today.
Thatchers is appealing a High Court ruling in January that Aldi’s Taurus Cloudy Lemon Cider had not infringed its trademark. The High Court judge found Aldi’s design had “caused a link in the mind of the average consumer” but had not taken unfair advantage and was “not detrimental to the repute of the trademark”.
Thatchers’ skeleton argument in the appeal claims the judge “lost sight of what should be the correct comparison in assessing unfair advantage”.
It argues the correct comparison is whether or not the sales achieved by Aldi would have been as high “if it had used packaging which does not bring the registered trademark to mind”.
It claims that in comparing the sales of Aldi’s products to others in its Taurus cider range, the judge assumed those had not also benefited from “riding on the coat-tails of a market leader”.
Geoff Steward, intellectual property partner at law firm Addleshaw Goddard, said Thatchers’ skeleton argument was a “sensible read”, adding: “We’ll have to wait and see if the appeal judge agrees.”
Mary Bagnall, head of intellectual property at Charles Russell Speechlys, said: “Appeals in cases such as these are particularly difficult because the Court of Appeal may only intervene if the judge’s findings of fact were rationally insupportable, or in making her multi-factorial evaluation of the issues, she erred in law or principle.”
A judgement is expected in the new year.
An Aldi spokesperson said: “We remain confident in the High Court verdict ahead of this appeal and are as committed as ever to offering shoppers high-quality, exclusive brands at low prices.”
Thatchers declined to comment.
The Grocer first revealed Thatchers was appealing in October.
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 the latest chapter in a lawsuit launched by Thatchers more than two years ago, and the latest in a string of trademark infringement claims against Aldi.
Last year Aldi was found in 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.
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