Thatchers v Aldi – as no confusion found between cloudy ciders, are courts souring on established brands?

In a judgment handed down by the Intellectual Property Enterprise Court (IPEC) last week (Thatchers Cider Company v Aldi Stores [2024] EWHC 88 (IPEC)), Aldi's lookalike cloudy lemon cider has been held not to infringe Thatchers' trade mark nor passed off its product.

Background

Thatchers, the family-run cider maker founded 120 years ago, launched its Cloudy Lemon Cider in February 2020 and registered a UK trade mark (device mark) for the label (depicted in the first image below) later that year.

Meanwhile, Aldi, the discount supermarket chain, noticing a shift in consumer buying habits to more unique flavours of cider, launched its own cloudy lemon cider under its Taurus brand (depicted in second image below) in May 2022. The label featured a similar colour scheme to Thatchers' Cloudy Lemon Cider label, as well as use of lemons, leaves and similar wording beneath the Taurus brand name.

The claims

Thatchers issued proceedings for trade mark infringement under sections 10(2)(b) and 10(3) of the Trade Marks Act 1994 and for passing off.

Thatchers claimed that alongside the overall similarity between their trade mark and Aldi's product, the TAURUS brand name was visually similar to the THATCHERS brand name, that the lemons were placed similarly to those on Thatchers trade mark (and purposefully used whole lemons and their leaves, rather than cut lemons), that the words "cloudy", "lemon" and "cider" were arranged similarly (albeit in a different order), and that Aldi was attempting ride on the coat tails of Thatchers' trade mark and gain a benefit from their reputation and marketing efforts.

IPEC decision

However, despite Aldi acknowledging that they had "benchmarked" their cloudy lemon cider against Thatchers' when designing their product, which included an assessment of its branding, the court disagreed with Thatchers' arguments. Even though the court found that Thatchers' trade mark possessed enhanced distinctiveness, this was not sufficient for a finding of trade mark infringement. The court concluded that the THATCHERS and TAURUS elements were visually similar to only a low degree and were aurally and conceptually dissimilar. Likewise, while the use of whole lemons and their leaves did lend some degree of similarity, the style (which the judge considered to be more "cartoon-ish" in Aldi's branding) and the arrangement of the lemons and the treatment of the leaves meant the importance of their similarity when the signs were considered as a whole was "considerably decreased".

Furthermore, the yellow, green and cream colours used by the two brands was also shared by many other lemon-flavoured drinks, cider or otherwise, available on the market and therefore the court was not satisfied that Aldi intended to exploit the reputation and goodwill of Thatchers' trade mark.

Uniquely, when considering the question of whether Aldi's use of the sign on their product would be detrimental to the reputation in Thatchers' trade mark, the judge conducted a blind taste test to compare the two drinks. While confessing that she was not an expert and had never tasted cloudy lemon cider before, she found the taste of the two products to be similar and therefore sided with Aldi that the taste of their product was not so "significantly different" that the taste would cast Thatchers' product in a negative light.

The claim was therefore dismissed, Aldi's product was found not to infringe Thatchers' trade mark, and nor were they liable for passing off.

Comment

Aldi are no strangers to being on the receiving end of complaints regarding their "copycats" of established brands, such as Marks & Spencer's legal challenges over Aldi's Cuthbert the Caterpillar cake and light-up snow-globe gin bottles (the latter of which we are expecting a Court of Appeal decision on in the coming months). However, the judgment in this case could be a useful template for Aldi and other discount supermarkets who may be looking to "benchmark" their discount brand against other established brands, indicating a minimum threshold that copycat brands can reach before they will be considered to be infringing their inspiration. Given the number of similar cases brought over the past few years, it is only a matter of time before the matter is considered again. We also understand that Thatchers are considering whether to seek permission to appeal this decision, so this supermarket spat may not end here.