Author: Iona Barron

How cloudy is the law when it comes to lookalikes?

Thatchers have brought an action in the High Court against Aldi for trade mark infringement and passing off over their Cloudy Lemon Cider.

Thatchers is family run business based in Somerset which has been operating for over 100 years in the alcoholic drink industry. It launched its cloudy lemon cider in February 2020 and obtained a registered trade mark. The representation was for the packaging in class 33 for cider and alcoholic beverages (except beer).

The legal dispute is over the packaging of the Taurus Cloudy Cider Lemon sold by Aldi. Below is a side by side comparison of the products:

Thatchers claim that the Taurus Cider is so similar to the Thatchers trade mark that there is a likelihood of confusion on behalf of the consumer.

This confusion could arise when consumers do not look closely at the Aldi Product and purchase it without noticing that it is not the same as Thatchers, and/or when the public think that the Aldi product was made by or connected with Thatchers.

Thatcher's legal counsel stated that the Thatchers product was developed through comprehensive market analysis, feedback and taste testing process. They also say that Aldi is taking unfair advantage or is detrimental to the distinctive character or reputation of its trade mark and passing off, in part because it has been able to enter the market without carrying out similar product development or proof of concept.

Aldi’s defence distinguishes its product from Thatchers. It emphasises the differences in logo, the stylisation of the lemons, the leaves and the brand name.

Further, it contends that the core distinctiveness lies in the brand name with the other aspects being either descriptive or, at most anodyne. Aldi also argued they received ‘extraordinarily high’ sales of the Taurus product, more than £1.4million (a fact that Thatchers claim is evidence of Aldi benefitting from Thatchers’ market presence).

In a unique twist, the judge was invited to partake in a ‘taste test’ so the court was not swayed by any description provided by either party.

What do we think?

This claim follows a similar pattern of actions against budget supermarkets and their own brands with brand owners looking to assert their rights against “lookalike” products.

As is often seen in previous cases against such “lookalikes”, there are several obstacles for Thatchers to overcome.

Thatchers may struggle to be successful in claiming a likelihood of confusion given the differences in the parties respective trade marks and packaging. Whilst both parties trade marks, as used on the packaging, include "Cloudy Lemon Cider" this is in our view descriptive of the goods in question and the distinctive elements in each parties’ marks are the other word elements “THATCHERS” and “TAURUS”. As a result, the differences in the distinctive elements would, in our view, be sufficient to distinguish the trade marks given the only identity or similarity is in the non-distinctive and descriptive elements of the marks.

Thatchers obviously have a substantial reputation in the cider industry but it will be interesting to see if that reputation spills over into specifically the Cloudy Lemon Cider market. Proving reputation is essential for a claim of unfair advantage to be successful, and even if Thatchers can show this it may then still struggle to show that consumers will make the requisite “link” between the brands.

In “lookalike” cases, it has been historically very difficult for passing off cases to be successful as it is hard to show that a consumer is deceived into believing that the “lookalike” is the product of, or associated with, the original brand owner (i.e. here, Thatchers).

Interestingly consumers have now become accustomed to seeing “lookalike” products such that they are rarely, if ever, deceived or confused as to their origin. The question is what was first; was the status quo driven by the consumer, or has the approach and decision of the Courts led to such lookalike products becoming the norm, and thus expected by consumers.

Brand owners would be wise to follow this case. If Thatchers can be successful, particularly in the arguments related to unfair advantage then other well known brands may feel more confident in taking future action.

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