Judicial Press: High Court pours legal clarity over cloudy and bitter Thatchers v Aldi cider dispute
On 24 January 2024 in the Intellectual Property and Enterprise Courts, Thatchers Cider (Thatchers) was unsuccessful in bringing a trademark dispute against Aldi regarding their Taurus Cloudy Lemon Cider.
Thatchers originally launched a cloudy lemon-flavoured cider in February 2020 and in May 2022 Aldi produced its own Taurus Cloudy Lemon Cider.
Thatchers claimed that the supermarket gained an unfair advantage by copying its product in both taste and appearance.
However, after hearing both parties’ arguments and undertaking a blind taste test, Judge Melissa Clarke left Thatchers with a bitter aftertaste, asserting that there is “no likelihood of confusion” between Thatchers’ cloudy lemon cider and Aldi’s Taurus product.
In order to reach this judgement, Judge Clarke had to assess the below legal issues.
Was there an Unfair Advantage?
In order for a successful claim under s.10(3) of the Trade Mark Act 1994 the claimant must prove that the defendant intentionally mimicked the appearance of the claimant’s branding and in doing so took unfair advantage of, or caused detriment to, their registered trademark.
Aldi accepted that it used Thatchers’ product as a “benchmark” to produce its Taurus Cloudy Lemon Cider, however its primary purpose was to then develop a product that was of an equivalent or better quality for a cheaper price.
Therefore, although Aldi admitted that the two products might have similar aesthetics, theirs was not developed to take advantage of the reputation and goodwill of Thatchers’ trademark. Judge Clarke supported this notion and concluded that Aldi’s product did not take unfair advantage of Thatchers’ trademark, as there is no likelihood of confusion between the two products.
In addition to this, Thatchers was unable to convince the Court they had suffered a detriment as a result of Aldi’s product. Judge Clarke found that if a consumer did not like the taste or general appearance of Aldi’s product, then they are unlikely to also cast Thatchers’ product in a negative light.
Was Aldi liable for ‘passing off’?
‘Passing off’ requires a party to deliberately misrepresent their goods or services as being those of another party and for there to be damages arising from the breach. Thatcher’s claimed that Aldi made misrepresentations leading the public to believe that their product was connected in trade with the Thatchers’ equivalent.
Aldi denied that it was ‘passing off’ its product as one that appeared to be from Thatchers. Judge Clarke agreed with Aldi for the aforementioned reasons that there is no likelihood of confusion between the two products, and it would be highly unlikely that a consumer who disliked Aldi’s product would also cast their animosity onto Thatchers’ product.
As such, the Court concluded that there was no infringement on Thatchers’ trademark and they did not satisfy the legal test to substantiate a claim for ‘passing off’. An Aldi spokesperson responded:
“There’s nothing cloudy about this judgment, it’s clear cut”
How can Ellis Jones Help?
The Thatchers v Aldi case illustrates that, in order to have a successful trademark or passing off claim, it is pivotal you are able to satisfy the associated legal tests.
At Ellis Jones we have a specialist team who are experienced in pursuing and defending a variety of trademark, passing off and other intellectual property disputes. Even if your brand’s trademark is unregistered, you might be able to rely on the tort of passing off. If you wish to find out how Ellis Jones might be able to help, please contact Paul Kanolik at paul.kanolik@ellisjones.co.uk.
If you are looking to protect your intellectual property rights, then our specialist Business Services team can assist by carrying out trademark registration checks and searches, drafting trademark licenses, or advising on assignment agreements and other forms of intellectual property protection. If you require any of these services then please contact Diane Pearce at diane.pearce@ellisjones.co.uk.
About the authors
Paul is a Partner and Solicitor at the firm and has several areas of expertise, notably in Intellectual Property Disputes that include trademark infringement disputes and passing off claims.
Daniel is a Solicitor based in London and works within our Banking & Finance Litigation team, he also has expertise in Betting, Gambling & Gaming disputes and matters relating to Cryptocurrency.
Bradley is a Paralegal within our Banking & Finance Litigation department, supporting the team across a diverse range of matters and is based in our London office.
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