THATCHERS v ALDI – THE BATTLE OF THE CLOUDY LEMON CIDERS

THATCHERS CIDER COMPANY LIMITED v ALDI STORES LIMITED [2025] EWCA Civ 5

The IPEC had concluded that the Aldi lookalike cloudy lemon cider did not infringe Thatchers’ trade mark for cloudy lemon cider. Thatchers appealed to the Court of Appeal against the dismissal of its claim under s10(3) TMA 1994.

THE THATCHERS TRADE MARK v THE ALDI SIGN

THATCHERS Taurus

Thatchers is an established family run cider company with over 120 years of history. In 2020, it registered the UK trade mark as depicted above. Aldi launched a cloudy lemon cider in May 2022, as depicted above, under its Taurus brand.

What was the sign complained of?

This case highlights the need to be specific in the Particulars of Claim. There was some confusion in the IPEC as to what the sign complained of was in relation to Aldi’s product. Was it the four pack, the graphics, or the appearance? The Court of Appeal concluded that the sign was the graphics on the cans and on the cardboard 4 pack of the Aldi product.

THE COURT OF APPEAL DECISION
Issues:

Was there a link between the Aldi sign and the trade mark in the mind of the average consumer?

Was unfair advantage taken of the distinctive character or repute of the trade mark?

Was there detriment to the distinctive character or repute of the trade mark?

Similarity

Thatchers challenged the assessment that the degree of similarity was ‘low’ on two grounds:

The conclusion that a point of difference between the sign being 3D and the trade mark being 2D was wrong.
It was wrong to import a finding of similarity under s10(2) into the assessment of s10(3).

The Court of Appeal agreed with the first ground, finding that the judge had made an error as to what constituted the sign. It concluded that, with ground 2, importing a finding of similarity is permitted, as long as the analysis of the other requirements for infringement under s10(3) are not conditioned by factors only relevant to likelihood of confusion.

The Court of Appeal found that the IPEC judge should have assessed the similarity as greater than she did.

Was there a link?

The IPEC judge’s decision that the average consumer would have made a link was a finding of fact and was not rationally insupportable.

Aldi’s intention

Thatchers contended that the IPEC judge’s analysis was flawed for three reasons:

She confused intention to take advantage of the reputation of the trade mark (s10(3)) with an intention to deceive (s10(2)).
She made a rationally insupportable finding that Aldi did not significantly depart from its house style for Taurus ciders.
She wrongly discounted the faint horizontal lines present in both the trade mark and the sign.

The Court of Appeal concluded that:

The judge fell into error because she muddled up / failed clearly to distinguish between an intention to deceive and an intention to take advantage of the reputation of the trade mark.
The sign did significantly depart from Aldi’s house style for Taurus. Note the colour of TAURUS, the fruit images and the fact that the swooshes were less prominent.
Reproduction of inessential details can give away copying, which was demonstrated by the presence of the faint horizontal lines.
The resemblance between the sign and the trade mark was not coincidental.
Aldi intended the sign to remind customers of the trade mark.
The message being conveyed was that the Aldi product was like the Thatchers product but cheaper.
Aldi intended to take advantage of the reputation of the trade mark in order to assist it to sell the Aldi product.
The Aldi product achieved significant sales without promotion. Aldi did not attempt to prove it would have made the same sales without use of the sign.

Unfair advantage

The Court of Appeal concluded that the case fell within L’Oreal v Bellure [2009] ECR I-5185 (ECJ). There was a legitimate inference that Aldi obtained the advantage from the use of the sign that it intended to obtain. There was an unfair advantage because Aldi was able to profit from Thatchers’ investment in developing and promoting the Thatchers product. The Aldi product was not the same quality, as there was no real lemon juice. The appeal on this point was allowed.

Damage to the repute of the trade mark

The Court of Appeal found that the presentation of the Aldi product was misleading. It gave the impression that real lemon juice was used. It did not follow that it was detrimental to the reputation of the trade mark though, as customers were unlikely to be confused as to trade origin. The appeal on this point was dismissed.

S11(2)(b) defence

The sign is the design reproduced on the front and rear of the cans of the Aldi product and on front of cardboard packaging. The sign was distinctive of Aldi. The sign was deemed to fall within s11(2)(b).

In relation to honest business practices, the court considered the following points:

It was unclear if Aldi was aware of the trade mark when the sign was adopted.
It was reasonable for Aldi to carry out checks.
No legal advice details were disclosed by Aldi.
Aldi was aware of the reputation of the trade mark and intended to take advantage of it.
Aldi should have appreciated that Thatchers would object.
There was no justification in using the sign.

The Court of Appeal concluded that Aldi’s use of the sign was not in accordance with honest business practices in industrial and commercial matters because it was unfair competition.

Conclusion

Thatchers’ appeal against the IPEC judge’s dismissal of their claim under s10(3) was allowed.

The Court of Appeal substituted a finding that Aldi infringed the Thatchers trade mark pursuant to that provision.

SUPREME COURT

Aldi sought to overturn Court of Appeal’s decision on the following grounds:

The court improperly expanded the scope of trade mark infringement by effectively creating a new wrong of ‘mere copying’.
The court misapplied the s11(2)(b) defence by failing to properly consider Aldi’s right to use descriptive indications concerning the characteristics of its product.

Aldi was refused permission to appeal in June 2025.

COMMENT

The case is good news for brand owners who invest in their products and are then subjected to other companies producing lookalikes. This case helps to clarify the position on lookalikes.

It found that intentional copying with the aim of evoking a branded product in the minds of consumers is trade mark infringement. Unfair advantage is possible where there is a link, even with no direct confusion, and a benefit to reputation is obtained from the brand owner’s investment.

The defence of honest business practices will be scrutinised, especially if the strategy appears to trade on the reputation of existing brands.

Judgment date: 20 January 2025
Link to judgment: [2025] EWCA Civ 5 CA.2024.000463 Thatchers Cider Company Limited v Aldi Stores Limited Handed Down Judgment H.D 17th - 18th December 2024