The English Court of Appeal has decided that brand owners can use their trade mark registrations to stop lookalike products, if the trade mark registrations protect the overall appearance of the products. Businesses who want to protect against lookalikes will want to review their trade mark portfolios to ensure they have the necessary registrations in place.
The decision in Thatchers Cider Company Limited vs. Aldi Stores Limited [2025] EWCA Civ 5 was handed down on 20th January 2025.
(https://www.bailii.org/ew/cases/EWCA/Civ/2025/5.pdf)
Aldi, the supermarket chain that has a history of selling own-brand lookalikes had launched a lookalike cider product. The brand owner, Thatchers, failed in their case for trade mark infringement at first instance before the Intellectual Property Enterprise Court. On appeal, Thatchers have succeeded against Aldi, on the basis of “unfair advantage” (Section 10(3) of the UK Trade Marks Act).
Section 10(3) does not require a likelihood of confusion between the registered trade mark and the infringement, but rather that the infringement “takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the trade mark”. Using this section requires a relevant trade mark registration protecting the trade mark in question, in this case a registration protecting the brand owner’s trade dress, i.e. the way the overall product appears to the consumer.
The judgment is capable of being appealed to the UK’s Supreme Court if permission to appeal is granted, which we believe to be unlikely in this case.
This judgment should make the enforcement of brands easier against lookalikes, but only if the brands have the relevant trade mark registrations. If you would like advice on the trade mark registrations you have, or should have, for your products please get in touch with your usual contact in the Beck Greener trade mark team. Alternatively, feel free to contact Ian Bartlett, who heads the team.
