Thatchers Cider Company Limited v Aldi Stores Limited

For trade mark infringement, the sign and mark must be compared as identified in the pleadings, and the sign must be assessed in its real commercial context. Similarity between descriptive or commonplace features may be insufficient where the dominant brand elements are dissimilar. A link between a sign and a reputed mark is not itself confusion or unfair advantage.

Enhanced distinctiveness may attach to a composite mark as a whole, even where individual elements are descriptive or decorative. For section 10(3) infringement, unfair advantage requires evidence that the use objectively enables the defendant to benefit from the mark’s reputation or goodwill. Detriment to repute requires more than a difference in product quality or taste. Passing off requires a misrepresentation of trade connection, not merely product comparison or imitation.

Thatchers owned a registered device mark for cider and alcoholic beverages and sold a cloudy lemon cider under that mark. Aldi sold a cloudy lemon cider in its Taurus range. Thatchers alleged infringement under sections 10(2)(b) and 10(3) of the Trade Marks Act 1994, and passing off.

The court first determined that the complained-of sign was the overall appearance of a single Aldi can, rather than the four-can pack or one face of the can. The central questions were whether the sign was similar to the mark, whether it caused confusion or a link in the average consumer’s mind, and whether Aldi took unfair advantage of or caused detriment to the mark.

1. Sign. The pleaded sign was the overall appearance of a single can of Aldi’s product. It was not confined to one face of the can and did not include the four-can pack as such.
2. Section 10(2)(b). The court applied the global assessment required by Specsavers and related authorities. The Trade Mark had enhanced distinctiveness through use. Its dominant features were “THATCHERS CLOUDY LEMON CIDER” within something of a roundel, with lemons, leaves and background colour. The Sign was dominated by the “TAURUS” brand and bull’s-head device. The parties’ brand elements were aurally and conceptually dissimilar, and only minimally visually similar. The shared wording, colours, lemons and leaves were descriptive, commonplace or treated differently. Overall similarity was low.
3. The average consumer would encounter the Sign in an Aldi retail context, prominently displaying the Taurus branding and often surrounded by other Taurus products. The absence of actual confusion, despite substantial sales, weighed against confusion. The fact that the Sign called the Trade Mark to mind was insufficient. There was no likelihood of confusion.
4. Section 10(3). Thatchers had a UK reputation in the Trade Mark and Aldi’s use caused a link in the average consumer’s mind. However, there was no sufficient evidence that Aldi intended to exploit the Trade Mark’s reputation or that the objective effect of its use changed, or was likely to change, consumers’ economic behaviour. The claims of unfair advantage and detriment to repute therefore failed.
5. Aldi’s section 11(2)(b) defence fell away. Thatchers had goodwill, but there was no misrepresentation that Aldi’s product was made, licensed, approved or commercially connected with Thatchers. The passing-off claim also failed. The claim was dismissed.