Thatchers Cider Company Limited v Aldi Stores Limited

In trade mark disputes about product packaging, similarity alone does not establish infringement: a low degree of visual similarity to a composite two‑dimensional trade mark will not give rise to a likelihood of confusion where the dominant source-identifying elements differ, and where contextual factors (packaging, shelf presentation and house branding) lead consumers to perceive the defendant’s product as originating from a different source. A finding that a sign calls a registered mark to mind (a "link") does not by itself establish unfair advantage or detriment under s.10(3) Trade Marks Act 1994; the claimant must show that the use objectively exploits the mark’s reputation or causes a real risk of economic detriment or tarnishment.

The claimant, proprietor of a registered two‑dimensional device mark for "Cider; Alcoholic beverages, except beer" (class 33), alleged that the defendant’s own‑brand canned cloudy lemon cider packaging infringed the mark under Trade Marks Act 1994 ss.10(2)(b) and 10(3) and in passing off. The trial determined liability only. The central issues were (i) the identification of the sign complained of (the overall appearance of a single can of the defendant’s product), (ii) similarity between that sign and the registered mark, (iii) likelihood of confusion, (iv) whether the registered mark had reputation and enhanced distinctiveness by the relevant date, (v) whether the defendant’s use gave rise to a link with the mark and, if so, whether that use took unfair advantage of or was detrimental to the mark, and (vi) passing off. The court made findings of fact about benchmarking, product development and shelf presentation, and applied settled trade mark and passing‑off principles to dismiss the claims.

(1) Overall disposition. The claim is dismissed in full: there is no infringement under Trade Marks Act 1994 s.10(2)(b) or s.10(3), and the passing‑off claim fails. [See paras 147–148]

(2) Identification of the sign. The sign complained of is the overall appearance of a single can of the defendant’s cloudy lemon cider. The pleaded illustration of a 4‑can pack was held to identify a single can (the can being the product unit). [paras 7–17]

(3) Similarity. The registered mark is dominated by the central word element ("THATCHERS CLOUDY LEMON CIDER" within a roundel) with prominent whole‑lemon device elements and a creamy‑yellow background. The defendant’s sign is dominated by its house brand and device ("TAURUS" and bulls‑head) with a swoosh device, whole lemons and a similar limited palette. Visually there is some similarity (lemons, palette, descriptive text) but important differences (distinctive house device and word mark, different treatment and arrangement of lemons and leaves, presence of swoosh and bull device). Overall similarity is low. [paras 78–89]

(4) Likelihood of confusion (s.10(2)(b)). Applying the Specsavers/Comic principles (global appreciation by the average consumer, imperfect recollection, shelf context), the court found no real likelihood of confusion. Contextual features — the 4‑pack sleeve, shelf‑ready packaging (SRP), prominence of defendant’s "TAURUS" device on pack and SRP, and the manner in which cans are presented in store — reduce the risk that an ordinary consumer will mistake origin. Documentary and social‑media evidence did not show meaningful actual confusion. [paras 90–112]

(5) Reputation and enhanced distinctiveness (s.10(3)). The registered mark had acquired a UK reputation by the relevant date (19 May 2022) and some enhanced distinctiveness through substantial nationwide use and promotion. The court accepted evidence of significant sales and marketing. However, enhanced distinctiveness attached to the mark as a composite whole rather than converting descriptive elements ("cloudy lemon cider") into independently distinctive components. [paras 68, 91–99, 113–116]

(6) Link, unfair advantage and detriment (s.10(3)). The court found that use of the defendant’s sign did create a link in the average consumer’s mind with the claimant’s mark (i.e. the sign would call the trade mark to mind). Nevertheless, on a global assessment the defendant’s use did not, without due cause, take unfair advantage of the claimant’s reputation nor was there evidence of detriment to the mark’s distinctive character or repute. Factors weighing against unfair advantage/detriment included the low degree of overall similarity, the descriptive/ubiquitous nature of similar lemons/colours on lemon beverages, lack of evidence of adverse change in consumer economic behaviour, and absence of persuasive evidence that consumers would ascribe the defendant’s allegedly inferior ingredients or promotional claims to the claimant. The defendant’s use was found properly contextualised within its house branding rather than an attempt to appropriate the claimant’s goodwill. [paras 121–144]

(7) Passing off. The claimant established goodwill in relation to the product, but there was no actionable misrepresentation that the defendant’s product was that of, or connected with, the claimant. Accordingly the passing‑off claim failed. [paras 145–146]

(8) Orders. The claim is dismissed and no remedies are awarded. [para 148]