In recent years we have seen the rise in cut price supermarkets and affordable retailers. Whilst many of these supermarkets fail to offer our favourite brands, it appears that they offer similar products with almost identical labelling. So how are they getting away with it?
Thatchers Cider Company Limited recently issued proceedings against Aldi Stores Limited in respect of Aldi’s sale of its “Taurus cloudy cider”. Thatchers relied on its registered trade mark “Thatchers Cloudy Lemon (and Device)” and alleged trade mark infringement and passing off.
Aldi accepted that it used Thatchers’ product as a “benchmark” but denied any act of trade mark infringement.
In the circumstances, the judge held that Aldi had not infringed Thatchers’ trade mark as there was no “likelihood of confusion”. The judge ruled that whilst Aldi’s use of the mark caused a link in the mind of the average consumer, it did not take unfair advantage of the mark. The judge also found that Aldi was not liable in passing off as there was no misrepresentation that Aldi was connected to Thatchers.
The judge was also invited to conduct a blind taste test. Whilst the judge acknowledged that the taste of the two products were similar, she accepted that they were different.
So, the question remains, would you be confused by a cut price version of your favourite brand in a discount supermarket? And if you were an owner of a valuable high-quality brand in which you had invested significant development and marketing costs, would you be willing to allow this act to continue? Maybe extending the scope of your trade mark portfolio, obtaining design right protection for your bottle shape or label could be an additional preventative step to deter infringers. Thoughts on a postcard…
To view the full judgement, please follow the link below:
Thatchers v Aldi FINAL Judgment IP-2022-000076 (judiciary.uk)
Get in touch
If you are a brand owner and would like to discuss protecting or enforcing your intellectual property rights further, Rebecca Anforth (Legal Director), would be delighted to hear from you. You can reach Rebecca on 07984 692100 or you can email her rebecca.anforth@murrellassociates.co.uk.
