In January this year, we reported on the trade mark dispute and passing off dispute between Somerset cider maker, Thatchers, and supermarket giant, Aldi. In the next chapter of the dispute, Thatchers have appealed the High Court’s decision that there was no infringement. The Court of Appeal will review the case in December.
Thatchers originally brought the claim on the basis that Aldi had copied the taste and appearance of its cloudy lemonade cider, and the fact that Aldi’s version was sold at a lower price point gave them an unfair advantage. Although the court recognised that Aldi had taken some inspiration from Thatchers, it decided that Aldi had developed a product that was a “safe distance” from Thatchers’ cider and there was therefore no likelihood of confusion.
The Court of Appeal would not be able to change any factual findings. However, it may decide that the High Court judge incorrectly applied the tests for trade mark infringement and passing off in light of the factual findings. This could mean that it is found that Aldi had taken unfair advantage of Thatchers’ mark’s reputation. If the result is swayed in favour of Thatchers, it will be a big blow to Aldi, given the number of other infringement claims that they have been subject to in the last few years.
If you have any questions on the above, please do not hesitate to contact the team at McDaniels Law on 0191 281 4000 or legal@mcdanielslaw.com.
