Battle of the ciders – has Aldi pushed the infringement boundaries too far this time?

The Court of Appeal says yes, with its recent unanimous decision in Thatchers Cider Company v Aldi Stores [2025] EWCA Civ 5. Briffa previously reported on the case of Thatchers v Aldi, whereby Aldi was cleared of wrongdoing with their lookalike cloudy cider product. Thatchers brought a claim in relation to their ‘Thatchers Cloudy Lemon Cider’ product for trade mark infringement and passing off against Aldi, who even admitted that they used the highly successful Thatchers product as a benchmark from which they developed their Taurus cider.

With its ‘like brands, only cheaper’ tagline, Aldi is known for unapologetically sailing close to the wind with their copycat products. In this instance, it appeared that they had got away with it, until now.

Unsurprisingly, Thatchers appealed the controversial decision to the Court of Appeal, arguing that it was clearly a case of “transfer of image” from Thatchers’ trade mark to the Aldi product. As such, Aldi could present its product as the same as Thatchers’, only cheaper, thereby benefiting from Thatchers’ product development and marketing efforts “without spending a penny”. The evidence showed that the Aldi product sold well in a short period of time, despite the absence of promotion.

Aldi’s departure from the house style of the rest of its Taurus cider range coupled with the fact that the Thatchers product was its only benchmark product during Aldi’s design process, resulted in the “inescapable conclusion” that Aldi intended their cloudy lemon cider to remind consumers of Thatchers.

The exercise of “benchmarking” was discussed, the Court of Appeal indicating that this practice can amount to taking unfair advantage of a benchmark’s hard-earned reputation.

Aldi attempted to argue that the elements of the packaging were descriptive (e.g., the descriptive ‘cloudy’, ‘lemon’ and ‘cider’ wording and use of images of lemons), however, the court was minded to view the mark as a whole, rather than pick out individual elements.

Thatchers prevailed, with the court unanimously finding that Aldi had infringed Thatchers’ trade mark.

Thatchers also claimed that Aldi had caused detriment to the repute of its trade mark, however, the court held that consumers would not pick up the Aldi product thinking it was the Thatchers product, so any product quality issues would affect Aldi, not Thatchers.

Perhaps this is a sign that the tides are shifting with respect to the courts’ response to copycats, with multiple recent decisions turning to favour the rightsholder.

That said, Aldi has indicated its intention to appeal this decision, so we will have to wait for the Supreme Court to weigh in and decide once and for all.

For brand owners, this decision highlights the importance of securing protection for your brand packaging as well as your brand names and logos. Get in touch to speak to one of our expert solicitors to discuss taking action against copycats and build your brand strategy.