Following the widely publicised trade mark infringement case win for our client, Thatchers Cider Company, Thomas Chartres-Moore – head of Intellectual Property and Data Protection at Stephens Scown – discusses what the recent Court of Appeal ruling means for brands.
Thatchers vs Aldi – the back story
A fourth-generation family business, Thatchers was established in 1904 in Somerset, where it is still based today, albeit with a much more global customer base. As a vibrant, passionate drinks business, it invests time and money in developing quality new products for the cider market. In 2018, it identified a gap in the market for citrus-flavoured cider, and accordingly developed its Cloudy Lemon cider, which uses real lemon juice as well as its usual, high-quality apples. In 2020, Stephens Scown registered a trade mark for Thatchers to protect this product.
Aldi, the discount supermarket giant, has been selling cider under its in-house own-brand name since 2013. In May 2022, they decided to introduce a cloudy lemon cider to the Taurus line as a seasonal variant.
Following the introduction of this new product, Thatchers, represented by Stephens Scown LLP, Martin Howe KC and Beth Collett (barristers at 8 New Square Chambers) brought trade mark infringement proceedings against Aldi. Initially, they lost the case, but the Court of Appeal has overturned this decision and held that Aldi has taken unfair advantage of Thatchers’ trade mark.
What happened at the Court of Appeal?
The Court of Appeal decided that the Aldi branding closely resembled Thatchers, and that Aldi intended for their branding to remind customers of the Thatchers cider, and had deliberately designed their product to send the message that the Aldi cider was like the Thatchers cider, but cheaper.
The Court said that branding its product in this way enabled Aldi to profit from Thatchers’ investment in developing and promoting its cider, rather than competing purely on quality and/or price, and Aldi’s own promotional efforts. This finding was backed up by the fact that the Thatchers Cloudy Lemon cider contains real lemon juice, which is what makes their cider cloudy, while Aldi used artificial flavourings and additives.
What are the key implications for brands
The Court of Appeal’s ruling in this case is not only a big win for our client, but also a landmark decision in the ongoing battle of brands against lookalike products and unfair competition. It is a positive affirmation of the strength of trade mark protection in the UK and therefore holding the supermarket accountable for taking unfair advantage of Thatchers’ reputation and investment in the design and development of its product.
The Thatchers vs Aldi case is therefore a significant win for brand owners, reinforcing the importance of protecting intellectual property and setting a strong precedent against copycat products.
Does this decision mark the end to copycat designs?
If a brand owner values its IP, and adopts the right strategy, yes. The decision provides brands with the reassurance that if you take a proactive and pragmatic approach to protecting your brand, understand the arguments that need to be made when opposing a copycat design and present them well, then examples of “dupes”, “copycats” and alike will be case you should be able to win.
Valuing your IP
In competitive commercial environments, especially ones such as the food and drink or retail sectors, a business’s name, logo and other brand assets can be pivotal to their success. However, as seen in other high-profile cases, there have been several instances where trade marked products have been targeted in copycat designs by large budget supermarkets that build their reputation on offering a low-cost alternative to well-known brands.
The decision is to be celebrated by brand owners, underlining the importance of safeguarding intellectual property rights against unfair commercial practices. While not a solution to preventing all copying, the result should be a warning to retailers attempting to adopt packaging that blatantly copies products that have been invested in and gained consumer confidence.
So, in conclusion, the key points highlighted by the Thatchers vs Aldi trade mark win are that the ruling has had a positive effect on:
Strengthening brands’ trade mark protection
The Court of Appeal win for Thatchers vs Aldi reinforces the importance of robust intellectual property asset protection, including the packaging and overall appearance of products. Brands are encouraged to invest in comprehensive strategies that cover protection, enforcement and commercialisation.
Acting as a deterrent to copycat products
The ruling serves as a deterrent to companies considering the launch of lookalike products. It underscores the premise that mimicking the design of a competitor’s product can lead to legal repercussions and significant financial penalties.
Focus moved to intent and impact
The case highlights there needs to be a shift in focus from consumer confusion to the intent behind the design and the broader impact on the original brand’s reputation. This could influence future trade mark infringement cases, making it easier for brand owners to protect their intellectual property.
Setting a legal precedent
The ruling sets a legal precedent in the UK, providing clearer guidelines on what constitutes unfair advantage and trade mark infringement. This can help brand owners better navigate the complexities of trade mark law. The case also highlighted how a brand can leverage social media, with consumers identifying the striking likeness before you have, which can be produced in court and adds to the validity of the case.