9th May 2025

Brand Owner Protection, a Step in the Right Direction

If like me you have wondered how some of the grocery stores manage to get away with the “look-alike” branding for their products, or, if you are a brand owner, how you can protect your brand in the face of what be considered something of an onslaught of free-riding on certain brands’ reputation, then the Court of Appeal earlier this year provided some clarity (and protection) for brands and brand owners.

The parties to the case were Thatchers Cider Company (the brand owner) and Aldi Stores Limited. Thatchers have been in business making cider since 1904 and launched a cloudy lemon cider in 2020. They obtained a trade mark registration for the label that appears on its cans and packaging. Aldi launched a lemon cider in 2022 using the name Taurus. The branding for the Aldi product was different from their usual in-house style, added certain imagery (lemons and leaves). Thatchers sued for trade mark infringement and passing off.

At the High Court, Thatchers were largely unsuccessful on both elements of the claim for infringement. So, they appealed to the Court of Appeal. The main point of the appeal was concerned with the High Court’s finding that Aldi’s packaging did not take unfair advantage or tarnish the Thatcher trade mark.

The appeal succeeded. There was a lot of technical discussion in the case regarding these types of cases in previous judgments, but in essence the court decided that there can be a finding of unfair advantage, even if the infringing party were not intending to free ride on the back of the reputation of the trade mark. The court also found that the departure from Aldi’s in-house style and the imitated elements of the Thatchers packaging nevertheless showed an intention to convey to a consumer something to the effect that their product was “like Thatcher’s product, only cheaper”. The judge was very clear on this point stating that:

“That was an unfair advantage because it enabled Aldi to profit from Thatchers’ investment in developing and promoting the Thatchers Product rather than competing purely on quality and/or price and on its own promotional efforts.”

He further described the Aldi packaging as being “not in accordance with honest practices in industrial and commercial matters because it was unfair competition”.

There is no doubt that this is a pro-brand owners judgment, and provides some comfort to brand owners that free-riding on another brand’s reputation is going to be less tolerated by the courts. It might also be considered (although not by the writer) that it is against the interest of consumers (and certainly Aldi consider this to be the case, saying that they will pursue an appeal).

It is also of note that as part of the case management process, documents relating to the design process can be disclosed (often quickly and relatively cheaply). This means that the intentions of the alleged infringer can be brought into the light for consideration as well relatively early in the litigation management process.

This is a somewhat technical area of the law and therefore legal advice should be always sought. It is especially important to do as soon as the alleged infringement is noticed.

For specialist advice on this topic, contact alee@bussmurton.co.uk or call 01892 502 362.

Alex Lee

Alex Lee
Partner