In February 2020, the cider brand Thatchers launched a cloudy lemon cider with a distinct 'lemon-focused' design. In 2022, Aldi rebranded its lemon-flavoured cider with a very similar design.
Thatchers challenged this as an infringement of its trademark, alleging that Aldi had deliberately made its Taurus lemon cider very similar to Thatchers' lemon cider in order to take advantage of Thatchers' existing goodwill and reputation. Last year, the English High Court ruled in favour of Aldi. The judge agreed that Aldi's lemon cider looked similar to Thatchers' but did not feel that this confused customers or influenced their economic behaviour.
Thatchers appealed. In its decision, issued this week, the Court of Appeal upheld the appeal overturning the High Court decision. The Court of Appeal found that the overall design and packaging of the Aldi product intended to communicate to customers that this product was "like Thatchers' product, only cheaper". The Court rejected Aldi's arguments that it would have sold a similar quantity of its product had it stuck with the original Taurus design and that the similarities to Thatchers' design were "non-distinctive" and "merely decorative". It was held that "The inescapable conclusion is that Aldi intended…" its lemon cider to remind consumers of Thatchers.
This Court of Appeal decision demonstrates a seismic shift in the approach to lookalike products. Companies like Aldi, Lidl and other retailers have driven sales partly due to their vast ranges of lookalike products. These lookalike products are now susceptible to challenge from brand owners following this victory by Thatchers. Brand owners need to take immediate steps to ensure the overall appearance and trade dress of their brands are protected in order to take advantage of this power shift. This is a really important victory in the war by brand owners against lookalikes.
This article was co-written by Calum Chrystal, Trainee Solicitor.
