Imitation: The highest form of flattery or trade mark infringement?
Author: Alistair Slack
Key Contact: Cordelia Payne
When confronted by a copycat design, it’s not a given that brand owners will triumph in court, banish the alleged knock-off design and keep their brand unique. We look at Thatchers v Aldi and see what lessons can be learned.
In January 2025, Thatchers won its appeal against Aldi for trade mark infringement over the branding of Aldi’s cloudy lemon cider product. For brand owners to be afforded the same security against copycats, it is essential to understand the nuances of brand protection which Thatchers used to their advantage.
In February 2020, Thatchers released its cloudy lemon cider. For the next two years, the company spent around £3 million promoting the product, bringing in £20 million in sales by September 2022.
Aldi, known for its cheaper, look-alike products, released a similarly branded cloudy lemon cider under its Taurus brand in May 2022.
See you in (the Intellectual Property Enterprise) Court! Thatchers v Aldi round one
At first instance, Thatchers brought proceedings against Aldi in the Intellectual Property Enterprise Court (IPEC) for infringement of its trade mark, as well as passing off. However, the IPEC ruled in favour of Aldi in January 2024 in both actions.
Why? The judge found that despite the established reputation of Thatchers’ mark, no unfair advantage had been established. As with previous high-profile cases of trade mark infringement, the IPEC ruled that Aldi had not intended to deceive or confuse customers – meaning no unfair advantage of Thatchers’ trade mark had been realised.
The Court of Appeal decision: Thatchers v Aldi round two
Last month, the Court of Appeal found that the IPEC was wrong in its assessment of Aldi’s intention.
The Court of Appeal declared that the IPEC judge “should have assessed the similarity as being somewhat greater than she did”. However, the Court of Appeal’s reversal of the decision centred on its view that Aldi’s lack of intention was not sufficient to rebut the fact an unfair advantage had resulted. This derived from the link created in the minds of consumers between the packaging produced by Aldi and Thatchers’ trade mark.
The Court of Appeal held that for there to be an unfair advantage it was sufficient that, in fact, an unfair advantage had been gained. This fact was legitimately inferred through an assessment of the sales figures of both companies’ products, given Aldi’s lack of evidence as to how it could have obtained such profitable sales with the lack of investment that it made to market its own product.
To brand owners inexperienced in the nuances of the law, this might seem intuitively obvious. However, the decision is important, because it could be viewed as a transfer of the burden of proof onto the defendant to prove they did in fact obtain an unfair advantage, rather than the trade mark owner having to prove an advantage gained against them.
Aldi v Thatchers: round three?
Brand owners should keep an eye out for further developments on this case as Aldi has expressed its intention to appeal the matter to the Supreme Court.
The top take-away for brand owners
Thatchers’ win is of great significance to brand owners. Essential to the company’s success in this matter was the fact that it had registered the full packaging artwork for its cider product – as opposed to just the brand name or logo.
It was not the Taurus logo that was deemed to have infringed Thatchers’ rights. Instead, the artwork produced by Aldi was held to be confusing in the minds of consumers. Had Thatchers only registered its logo, it would not have won their case.
Brand owners may be forgiven for thinking that that trade mark registration of their marks is a simple process. In reality, a case like Thatchers v Aldi demonstrates the degree of care necessary when considering registrations, in order to protect the time and resources invested into developing and selling a product.
For advice or assistance on trade mark or brand protection please reach out to Acuity’s IP specialist Cordelia Payne. If you are a brand owner experiencing a dispute with a copycat, our Commercial Litigation team offers commercially sound advice and support to navigate this nuanced, ever-developing field of the law.
