In 2020, Thatchers Cider Company launched a new product, Cloudy Lemon Cider, and applied its registered trade mark No. 3489711 to the cans and to the 4-can cardboard cartons:
The Cloudy Lemon product was successful, and in May 2022 Aldi launched their own cloudy lemon cider product under their Taurus house mark:
Thatchers sued for infringement of registered trade mark contrary to section 10(2) of the Trade Marks Act 1994, for passing off, and for infringement contrary to section 10(3) of the Act. Martin Howe KC and Beth Collett appeared for Thatchers.
On 24 January 2024, Judge Melissa Clarke sitting in IPEC dismissed these claims. In relation to section 10(2) and passing off, she held that likelihood of confusion as to trade origin had not been established.
In relation to section 10(3), she held that Thatchers had established that the appearance of Aldi’s cloudy lemon product gave rise to a link in the minds of consumers with Thatchers product sold under their registered trade mark, but held that it would not give rise to an unfair advantage nor to tarnishment of the registered mark.
The Court of Appeal has granted Thatchers permission to appeal against the dismissal of its case under section 10(3) and the appeal is expected to be heard in late 2024. This is believed to be the first case on “look alike” goods under section 10(3) that will be considered by the Court of Appeal.