On 20 January 2025, the Court of Appeal reversed an earlier IPEC decision and held that Aldi’s Taurus Cider product infringes Thatchers’ registered trade marks protecting its popular Cloudy Lemon Cider product. This decision could significantly increase brand owners’ ability to prevent lookalikes.
Arnold LJ, the leading IP judge in the Court of Appeal (with whom the other judges agreed), found that Aldi had, without due cause, taken unfair advantage of the reputation of Thatchers’ trade mark for its Cloudy Lemon Cider (shown below), which is trade mark infringement under s10(3) of the Trade Marks Act 1994.
Aldi’s Unfair Advantage
The Court found that Aldi had been able to achieve significant sales of their Taurus Cloudy Lemon Cider in a short period of time without investing any money into marketing or promotion by instead using a sign similar to the Thatchers’ trade mark and relying on the marketing by Thatchers to boost those sales.
He concluded that Aldi “obtained the advantage from the use of the Sign that it intended to obtain. That was an unfair advantage because it enabled Aldi to profit from Thatchers’ investment in developing and promoting the Thatchers Product rather than competing purely on quality and/or price and on its own promotional efforts.”
Market Impact
The Court confirmed that there can be a finding of unfair advantage even where the defendant did not subjectively intend to ride on the coattails of the famous mark. However, in this case, “Aldi intended the sign to remind consumers of the trademark” and that “this can only have been in order to convey the message that the Aldi product was like the Thatchers product, only cheaper.”
Social media evidence was particularly important in this finding. Some consumers had referred to the Taurus product as “a Thatchers Lemon cider rip off”.
Aldi has stated that they intend to seek permission to appeal to the UK Supreme Court. However, if the Court of Appeal’s judgment stands, this could be a landmark decision for brand owners trying to protect their famous brands from being undercut by cheaper lookalikes. Under this ruling, they would only have to prove that the lookalike was gaining a commercial benefit from its similarity to the famous brand – they would not have to prove malign intention or that the advantage was unreasonable in some other way.
Broader consequences for brand owners
While this decision will be particularly relevant to brand owners in the FMCG space, particularly those whose brands regularly compete with supermarket own-brand lookalikes, it is likely to have wider reaching implications for trade mark owners, particularly those in fashion or luxury goods.If you would like further information about protecting your brand (or any other IP concerns, including brand clearance, trade mark filing, licensing and disputes), please get in touch with a member of the IP team here at Fox Williams, who would be more than happy to help you.
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