Back in June we reported on the highly publicised High Court dispute between supermarket giants Tesco and Lidl. The High Court ruled primarily in favour of Lidl claiming that Tesco had “taken unfair advantage of its [Lidl’s] distinctive reputation” though the Court did not agree that Tesco had “the deliberate subjective intention of riding on Lidl’s coat tails.”
Tesco appealed the decision to the Court of Appeal and judgement has now been handed down, again, primarily in favour of Lidl. On 19 March, Lord Justice Arnold upheld the High Court’s earlier decision, dismissing Tesco’s appeal to overturn the findings of trade mark infringement and passing off. The Court of Appeal did, however, indicate that the findings of the earlier decision were “surprising” and “at the outer boundaries of trade mark protection and passing off”. Lord Justice Lewison doubted whether he would also have arrived at the same finding. However, the Court of Appeal confirmed that the point of the appeal is to find whether the earlier judge’s finding was “rationally supportable”, not to substitute the their own opinions.
The Court of Appeal did, however, uphold Tesco’s appeal that it had not infringed Lidl’s copyright on the basis Tesco did not take a substantial part of the relevant copyright.
Lord Justice Lewison concluded the matter by stating that “If I could find a way of avoiding this result, I would. But the difficulty is that the trial judge’s findings of fact, however surprising they may seem, are not open to challenge”.
It is to be seen if Tesco will appeal the matter to the Supreme Court.
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.
