Lookalike Competition: Thatchers Cider Company Limited v Aldi Stores Limited

Aldi is certainly not afraid to test the boundaries of trade mark infringement and make an enemy of well-loved brands. Such is the story in a recent case between Thatchers Cider Company and Aldi, where the cider producer brought a claim against the supermarket for trade mark infringement and passing off in relation to a cloudy lemon-flavoured cider.  Thatchers argued that Aldi had produced a cider (‘Taurus Cider’) that bore a remarkable and rather brazen resemblance to their own product. Attempting to rely on S.10(2)(b) and S.10(3) of the Trade Mark Act 1994, Thatchers claimed that Aldi’s packaging was highly similar, causing consumer confusion and allowing the supermarket to take unfair advantage of the cider producer’s established reputation. In addition to this, Thatchers argued that in being so similar, Aldi’s product would cause detriment to this reputation.

Indeed, Aldi acknowledged that Thatchers was used as the benchmark from which they developed their Taurus Cider. Nevertheless, the High Court dismissed the claim: Aldi did not infringe Thatchers’ trade mark, nor were they liable for passing off.

Ruling

The Court held that there was a low degree of similarity between the two products, whose packaging were on the whole aurally and conceptually dissimilar in both style and arrangement. With this in mind, it was found that there was little chance of consumer confusion: the possibility that Taurus Cider could bring the Thatchers’ product to the mind of the consumer was not sufficient to meet this requirement. The Court concluded that, with low degree of similarity and confusion, consumers were not going to change their economic behaviour – that is, by choosing to buy Aldi’s Taurus Cider over Thatchers’ product. Aldi was not, therefore, taking unfair advantage of Thatchers’ reputation. Nor was there any detriment to the Thatchers’ brand: a consumer wouldn’t think less of the cider company after buying Aldi’s product. Any distrust in the product would be aimed at Aldi, rather than Thatchers.

Comment

This case provides an interesting threshold for companies like Aldi, who has a penchant for developing lookalike products, in terms of how far they can push the boundaries of trade mark infringement. It seems that using other products as a benchmark is acceptable, even if this results in a degree of similarity. For the claimant, the onus is really on establishing consumer confusion, unfair advantage and detriment to their reputation – which Thatchers’ failed to fully evidence in this case.

It also confirms the critical idea in trade mark protection that the sign must be wholly distinctive, and not rely on just its brand name for differentiation.

This claim won’t make Aldi rethink their product development, but rather will confirm their audacious approach. Aldi reigned supreme in this lookalike competition – not that they needed this creative encouragement.