Trade mark decision this week (25 January): Judge drinks cloudy lemon cider in Court in Aldi vs Thatchers trade mark dispute

Thatchers claimed Aldi had infringed its trade mark as the overall appearance of the Aldi product is ‘highly similar’ to the Thatchers can, despite the Aldi product not being called “Thatchers”.

Her Honour Judge Melissa Clarke, sitting as a High Court judge, found ‘no likelihood of confusion’ between budget supermarket Aldi’s cloudy lemon cider in its Taurus range and Thatchers’ canned cloudy lemon cider. She found that the overall appearance of the respective cans of cloudy lemon cider was similar, but to a low degree.

The judge was then invited to conduct a taste test of both ciders and said that the two products tasted very similar, perhaps rather predictable for two competing products that were both cloudy lemon-flavoured cider. The judge admitted that she was no cider expert, unlike, say, the members of The Wurzels, evidenced by their knowledgeable pop hit “I’m a cider drinker” sung to the strains of Una Paloma Blanca.

In fact, the judge admitted that she had never tasted cloudy lemon cider before. She found the taste of the two products to be very similar, but accepted that they are different, much in the way Pepsi and Coke are similar but clearly different products with different branding.

Therefore taste, in this case, wasn’t a factor, as the products were different enough anyway in the way they looked on the shelves so as to avoid customer confusion, despite very high volumes of sales of both the Aldi product and Thatchers product.

The judge added that the elements in which she found some similarity, like the use of the colour yellow and lemon products, were ‘ubiquitous’. The use of lemons and lemon leaves on lemon-flavoured beverages including lemon ciders was very common.

Dismissing the claim for trade mark infringement, the judge said: ‘there is no real likelihood that the average consumer, taking into account all these circumstances which are likely to operate in his mind and the impression that the sign is likely to make on him, will be confused.’

Aldi tried to stay on the right side of the line and did so sufficiently to show that it did not have an intention to exploit Thatchers' reputation and goodwill.

The case helps product designers to work out how far they can go with branding and packaging when selling what are essentially highly similar products (in this case cider flavoured with lemon, in look and taste).

As luck would have it, there is also another Aldi case this week on which a decision is awaited: Aldi has appealed a finding of registered design infringement against it in relation to Marks & Spencer's festive gin bottle designs. We will report on that when we know the result.

In the meantime, if you have any trade mark or other intellectual property queries, please contact our Legal 500 Recommended Lawyer Brian Levine by email on brian.levine@battens.co.uk or telephone 01935 846000.