Case No. IP-2021-000119

”. Then came the “2020 Glitter Globe”, an elderflower gin liqueur aimed at the summer market, first sold on 14 May 2020. Neither the 2019 Snow Globe nor the 2020 Glitter Globe had an integrated light. They looked like this: 2019Snow Globe 2020 Glitter Globe34.The development of the 2019 Snow Globe was done in cooperation with the supplier of the gin liqueur, a French company called Boudier. Ms Rea said that there was a vast range of bottle shapes available, supplied to Boudier by several glass manufacturers across Europe. A prototype was created. Ms Rea identified two design constraints, such as they were: (i) the neck of the bottle had to be sufficiently wide to inject the gin liqueur containing edible gold leaf and (ii) the bottle had to have straight sides in part because they provided a better surface for a design to be created on the glass. There were several alternative options for the stopper, of which a cork stopper was chosen, with what Ms Rea called a “watch strap label” over the stopper.35.The 2019 Snow Globe was a successful product for M&S in the 2019 Christmas market. In December 2019 it occurred to Ms Rea to wonder whether a light could be added. There were discussions in January 2020 with Boudier and the company that had supplied Boudier with the bottles for the 2019 Snow Globe, Saverglass. A UK-based printer developed the lights which Ms Rea and her team wanted. Five “concepts” were developed with alternative bottle shapes and images to be applied to the bottles. Ms Rea illustrated four shortlisted bottle shapes which were suitable for the project: 36.The team decided on the same “botanics” bottle shape that had been used for the 2019 Snow Globe, with a similar stopper. The winter scene of the 2020 Light Globe was selected for printing on the side of the bottles. The 2020 Light Globe was first marketed on 15 September 2020 and incorporates the designs of the RDs in suit.37.There was also short evidence from Andrew Maxwell who is a Buying Director at Aldi. He agreed with the two design constraints mentioned by Ms Rea and said that there were more. His first was that it was only possible to create a snow effect using flakes made of gold. A previous Aldi design had used titanium oxide flakes which were appropriately white, but legislation had since prevented their use. Secondly, it was costly to use more than two colours to create the design on the bottle. In cross-examination he said that if the money is available, any bespoke design of bottle could be used but in practice there was a limited off the shelf range. What this limited range would have looked like was not made clear.38.I find that if a snow effect was to be used, it had to be created by the use of gold flakes. I accept the evidence that the aperture of the bottle had to accommodate the injection of the liqueur with gold flakes in it but I was given no reason to suppose that this was much of a limitation. If a design was to be printed on the side of the bottle, it would be simpler to print on a straight side and the more colours the design had, the more expensive production would be. 39.Otherwise, the designer had considerable freedom, particularly with regard to the shape of the bottle and the design to be printed on it.40.At least any of the four bottle shapes illustrated by Ms Rea could have been chosen and probably many other shapes without incurring excessive cost. Ms Rea described the range available from Boudier as an “Aladdin’s cave” of alternative designs. It was not clear whether Mr Maxwell’s evidence of a limited off the shelf range contemplated only one preferred supplier. In evidence five suppliers were mentioned.41.As to the design on the side of the bottle, if gold snow was to be used in the liquid and if a design was to be printed on the side of the bottle, it made sense to have a winter design. But there was almost complete freedom as to how to make a design look wintry.42.There was no design constraint requiring the gin to be illuminated. Mr Elias, counsel for Aldi, argued that the light had to be in the base of the bottle. I agree that there would be no other practical place to put it, but this requires the choice of a light in the first place.