Jurisdiction(s):
United Kingdom

Thatchers v Aldi (IPEC): no s10(2)(b)/s10(3) TMA 1994 infringement or passing off; low similarity, no confusion; plead the sign precisely; lookalike packaging needs design/copyright too

Published on: 09 February 2024

Published by a LexisNexis IP expert

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Article summary

Thatchers Cider Company Ltd v Aldi Stores Ltd [2024] EWHC 88 (IPEC) What are the practical implications of this case?

This ruling spotlights the challenges brand owners face in tackling lookalikes in a fast-moving, competitive alcoholic drinks market. The court assessed evidence on reputation, intention, confusion and damage, but found it fell short for both trade mark infringement and passing off. Showing that the Thatchers product acted as a benchmark for Aldi’s development was not, on its own, compelling. Numerous design choices were said to have been reached orally within Aldi, hindering Thatchers’ ability to prove how much its brand was relied upon. Internal emails indicated the Thatchers brand was considered; however, viewed together, that material did not meet the thresholds for reputational advantage or harm.

Reputation, intention, confusion and damage not proved to the requisite standard.
Benchmark evidence not determinative.
Oral decision-making at Aldi impeded proof of imitation.
Internal references to Thatchers insufficient for showing advantage or harm.
Particularising the sign is crucial; contradictions were damaging.

The decision also underlines the need to plead the sign complained of with sufficient particularity; the court criticised Thatchers for adopting inconsistent positions during the trial on what sign was in issue...

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