Claim No: IP-2022-000076 - [2024] EWHC 88 (IPEC)

Taking all of this into account, in my judgment the overall appearance of the Aldi Product, being the Sign, is similar to the Trade Mark, but to a low degree.

I have the Specsavers principles firmly in mind. I must assess the likelihood of confusion through the eyes of the average consumer taking account of all relevant factors including the context in which the Sign is perceived by him.

Thatchers has not pleaded, but submits, that the considerable use that Thatchers has made of the Trade Mark as described by Mr Milton in his witness evidence, leading to sales under the Trade Mark of the Thatchers Product worth £20.7m by retail value from launch to September 2022 (only a month after the relevant date), national recognition as evidenced by its social media engagements and consumer success as evidenced by its award, means that the court can be satisfied:

It submits that this is further supported by Aldi identifying it as the market leader in the cloudy lemon cider space, and the ‘benchmark’ for the Aldi Product.

Aldi admit that the brand name THATCHERS has a strong reputation and enhanced distinctiveness, but submits that this makes it more difficult for inherently non-distinctive elements with which it is used in the Trade Mark, to acquire distinctive character, per British Sugar Plc v James Robertson & Sons Ltd [1996] R.P.C. 281 at p302:

“It is precisely because a common laudatory word is naturally capable of application to the goods of any trader that one must be careful before concluding that merely its use, however substantial, has displaced its common meaning and has come to denote the mark of a particular trader. This is all the more so when the mark has been used in conjunction with what is obviously taken as a trade mark”.

I accept that submission as a matter of law. For example, there is no evidence before me that the words “Cloudy Lemon Cider” which are inherently descriptive (and so inherently non-distinctive) have gained any distinctive significance arising from what I have found to be significant use of the Trade Mark, such that the average consumer would understand them to be an indication that goods with those words come from Thatchers. It is not Thatchers’ case that they have. Mr Howe was clear in his oral submissions that he does not claim for Thatchers any monopoly in those words nor, indeed, in the use of lemons and leaves on lemon cider.

However, Aldi takes that further. It submits that none of the Trade Mark is distinctive except the “THATCHERS” brand at the centre, because all of the remaining elements are either descriptive or decorative. It does not go so far as to say that all non-distinctive components should be disregarded, because it accepts the well-established principle that consumers normally view marks as a whole. However, it submits, dominant and distinctive elements must be taken into account when comparing a mark and a sign. I accept that submission as correct as a matter of law. To show enhanced distinctiveness, Aldi submits, Thatchers would have to show that the non-distinctive elements of the Trade Mark have gained independent distinctive character so as to engage the principle in Medion v Thomson [2006] E.T.M.R and developed in White and Mackay Ltd v Origin Wine UK Ltd [2015] EWHC 1271 (Ch), [2015] F.S.R. 33 at [18] – [21] (set out below), and it submits that Thatchers has put no evidence before the court that they have:

I do not agree with that submission. As I have set out, Thatchers do not argue that any of the individual components (other than the “THATCHERS” brand) have gained distinctive significance independently of the whole. Mr Howe made clear in closing that the enhanced distinctiveness he argues for Thatchers attaches not to the individual elements but to the Trade Mark as a whole. In my judgment, as such, it falls into the second, not the first head described at [20] of White and Mackay, that “the principle can only apply in circumstances where the average consumer would perceive the relevant part of the composite mark to have distinctive significance independently of the whole, but does not apply where the average consumer would perceive the composite mark as a unit having a different meaning to the meanings of the separate components” (my emphasis).

In my judgment, this is not a case where the average consumer would perceive all of the Trade Mark outwith the “THATCHERS” as having distinctive significance independently of the whole, as “THATCHERS” is the central and dominant component of the Trade Mark. Rather, the average consumer would perceive that the Trade Mark has a different and enhanced meaning to the “THATCHERS” brand solus, namely that it is distinguishing the Thatchers Product as being that brand’s cloudy lemon cider product rather than any other product in the Thatchers family of ciders to which the “THATCHERS” brand is also applied. It is distinctive of the Thatchers Product as opposed to Thatchers Gold or Thatchers Haze, whilst still operating as a mark of origin of those goods. Accordingly, in my judgment, the authorities which Aldi put before me relating to three-dimensional marks (Société de Produits Nestlé SA v Cadbury UK Ltd (No 2) [2017] EWCA Civ 358) and colour marks (Glaxo Wellcome v Sandoz Ltd [2019] R.P.C. 27), are not relevant.

For that reason I reject Aldi’s argument that there is no evidence that the Trade Mark applied to cloudy lemon cider would be perceived by consumers as conveying any different brand origin to a plain packaging simply with the “THATCHERS” brand on it, because the descriptive and decorative graphic elements will not be relied upon as denoting origin when it is “THATCHERS” providing that guarantee. I find this a rather strangely worded argument, -perhaps because it is deployed in respect of the issue of reputation, which I will turn to, as well as enhanced distinctiveness. There is no reason why consumers would perceive the Thatchers Product in those two different packages – one with the Trade Mark upon it and one merely with “THATCHERS” upon it, as conveying any different brand origin, because there is no different brand origin. Both products, however packaged, originate from Thatchers. The question is whether there is any enhanced distinctiveness of the Trade Mark to the “THATCHERS” brand alone, and I have dealt with that above. That argument is also not supported by the evidence, in my judgment, including that of Aldi’s witness Mr Watkins. He told us that the design of packaging was important for improving the attractiveness of a product to customers, communicating what the product was, improving shelf stand-out and enhancing sales. He made clear that he thought Thatchers had done a really good job in its design of the Trade Mark. Consumers who took part in a focus group arranged by Thatchers with Co-op thought the packaging with the Trade Mark on it looked fresh, lemony, zest and appealing and said they couldn’t wait to try it. That cannot have been because of the “THATCHERS” brand on the front, in my judgment, but because of the Trade Mark as a whole.

For all those reasons I am satisfied that by the relevant date on which the Aldi Product, being the Sign, was first offered for sale, the Trade Mark had enhanced distinctiveness because of the extensive nationwide use that Thatchers had made of it.

What I have gleaned from the evidence is relevant context for the average consumer in this case includes:

On this last point of shelf stand-out, Thatchers submits that the shelf stand-out of the Aldi Product gives a clear overall impression of similarity to the Thatchers Product bearing the Trade Mark, in particular in its use of the limited colour palette of yellows and greens and the background of creamy-yellow and that this adds to the likelihood of confusion. Aldi says that colour palette is ubiquitous to lemon-flavoured drinks and I am satisfied that it is, and so it is not surprising that both parties have used it to distinguish their lemon cider product from their other, non-lemon products. In addition, Thatchers submit that they would have had no issue with the first version of the design for the Aldi Product, in the Taurus house style, which also had a palette of yellow, white and green on a creamy-yellow background. In contrast, Ms Herrett, who addressed me for Aldi on the likelihood of confusion in closing, relies on an image of the Aldi Product on the shelves of an Aldi store which is reproduced as figure 1 in the Annex to this judgment, and another image of Taurus products on the shelf taken on the morning of the second day of trial (but not including the Aldi Product which is no longer on sale). I accept these images give an idea of what the average consumer might see when perusing the cider shelves at Aldi and the overwhelming impression is of the Taurus brand. Of course every store on every day will look slightly different. I accept her submissions that:

There is no direct evidence of actual confusion of a direct or indirect nature, in my judgment. In terms of social media comment, Thatchers rely on a tweet from November 2022 referring to the Aldi Product, which says “I saw it on @AldiUK Shelf and genuinely thought it was @thatchers_cider at first. (Luckily I don’t like any cider flavoured with any fruit other than apples so wasn’t going to buy it anyway… CIDER SHOULD TASTE OF APPLES!)” I accept Aldi’s submission that this appears to be only a fleeting confusion which was quickly dispelled.

There is evidence of discussion of the Aldi Product and the Thatchers Product on social media. Some of that post-dates the launch of proceedings by Thatchers, which received publicity and caused discussion of the likelihood of confusion in various fora. That is not relevant for the purposes of assessing the likelihood of confusion as it amounts to commentary on the proceedings. Other examples make clear there is no confusion, for example in statements that the Aldi Product is a “knock-off” of Thatchers Product, or in comparing the taste of both products and expressing a preference, or in the post stating he had bought the Thatchers Product when he could not find stocks of the Aldi Product.

There is no evidence at all to support Thatchers’ pleaded allegation that “consumers will be led to believe that the Aldi product is a supermarket own brand product which is made and supplied by the Claimant”, in my judgment.

The fact that there is no real evidence of direct or indirect confusion, despite the very high volumes of sales of both the Aldi Product and the Thatchers Product, is a factor weighing against the likelihood of confusion, although not determinative of it.

I have found that there is a low similarity of the Trade Mark and Sign. Although I have found that the Trade Mark has gained some enhanced distinctiveness through use, I am satisfied that the principal dominating features of both marks are the “THATCHERS” brand on the Trade Mark and the “TAURUS” brand and bulls head device on the Sign which are dissimilar. Of those elements of the marks where I have found some similarity, in relation to the colour palette I am satisfied that the use of the colour yellow on both cider products and lemon products is ubiquitous, and the use of lemons and lemon leaves on lemon-flavoured beverages including lemon ciders is very common.

The evidence of confusion is lacking.

Mr Howe submits that the fact that Aldi’s specific instruction to Black Eye after receiving the first iteration of the design, which he says plainly followed the Taurus house style and in relation to which Thatchers has no complaint, was to add lemons so that it was “a hybrid of Thatchers and Taurus”, shows that Aldi intended to copy the Thatchers Product. Its later instructions and decisions about which options to take forward, he submits, meant that the design of the Aldi Product moved closer and closer to the Trade Mark as Aldi tried “to sail as close to the wind as they could”, until it got too close for the comfort of Aldi’s legal department, he infers, so that Mr Watkins made changes (to the wording and font of “Cloudy Lemon Cider” for example) to move it further away again. That may be exactly what happened during the design process, but I am concerned with the final design of the Aldi Product, being the Sign, and I have found that overall it has a low degree of similarity to the Trade Mark.

The question of intention comes into both an assessment of likelihood of confusion for section 10(2)(b) infringement and also unfair advantage for section 10(3) infringement. As Daniel Alexander QC sitting as a judge of the High Court put the difficulty in PlanetArt LLC v Photobox Ltd [2020] EWHC 713 (Ch), [2020] E.T.M.R. 35 at [38]:

“The difficulty with this aspect of law is not conceptual but arises because it is hard evidentially to disentangle a defendant’s intention to copy a claimant’s business from an intention to benefit from the claimant’s reputation and goodwill. In one sense any rival trader who is adopting similarities in approach and presentation of a business is intending to benefit from that but a court must be astute not to confuse that with the more specific intention to benefit from the reputation and goodwill of the registered trade mark”.

Mr Alexander QC went on to remind himself of the observations of Kitchin J as he then was, in Specsavers at [115], who distinguished between a defendant who takes a conscious decision to live dangerously and one who intends to cause deception and deliberately seeks to take the benefit of another trader’s goodwill. What Mr Howe describes Aldi did falls squarely, in my judgment, into Kitchin J’s definition of the latter: “He has appreciated the risk of confusion and has endeavoured to adopt a sign which is a safe distance away”. Kitchin J also notes that the ultimate question about whether the similarity between trade mark and sign is such that there exists a likelihood of confusion, “…is one for the Court to determine in light of its global assessment of all material factors, of which the intention of the defendant… is only one.” I will come back to PlanetArt in my consideration of intention to deceive in respect of section 10(3) TMA infringement.

I give significant weight to the context in which I must assess the likelihood of confusion, particularly what would be perceived by the average user when he is faced with the Aldi Product on the shelf. He will be scanning a shelf in which the Aldi Product comprising the Sign is placed within a 4-pack cardboard sleeve which, if viewed from above, presents the brand “TAURUS” and the bulls head device. The Aldi Product may, and mostly will, be set out on an SRP tray obscuring the Sign further and presenting the “TAURUS” brand, bulls head device and Taurus swoosh. It likely will be presented with many other “TAURUS” branded products, which may be on SRP trays or decanted from them.

The fact that the average consumer may look at the Sign and bring to mind the Trade Mark on the Thatchers Product is not sufficient for confusion. In my judgment, on a global assessment, there is no real likelihood that the average consumer, taking into account all these circumstances which are likely to operate in his mind and the impression that the Sign is likely to make on him, will be confused. Accordingly, the claim for infringement of the Trade Mark pursuant to section 10(2) TMA will be dismissed.

Thatchers submits that the level of trade evidenced by Thatchers in the Thatchers Product bearing the Trade Mark means that this point should be inarguable. It points out that the threshold is a low one which it is not onerous to surmount, as the Courts have repeatedly noted, for example as discussed by HHJ Hacon at [61]-[64] of Burgerista who notes that the factors relevant to reputation and enhanced distinctiveness are the same, but the threshold for reputation in the context of section 10(3) TMA (or equivalent in the Directive in that case) is lower.

Aldi argues that any goodwill arising from trade in the Thatchers Product attaches to the “THATCHERS” brand, which is central to the Trade Mark, and not to the Trade Mark as a whole, for broadly the same reasons which I have set out in relation to enhanced distinctiveness.

I am not with Aldi. Let us remember what goodwill or reputation is. It is “the attractive force which brings in custom” (IRC v Muller & Co Margarine Limited [1901] AC 217). I do not accept that a plain can stamped with “THATCHERS” or “THATCHERS Cloudy Lemon Cider” is likely to have accrued as much in sales as the Thatchers Product has achieved with the Trade Mark applied to it, nor that it could have been heavily promoted and subject to such wide engagement on social media in plain packaging as it has under the Trade Mark. That is a simply unrealistic submission, in my judgment. Once again, it is also not supported by Aldi’s own evidence that improving the design of its packaging would improve the attractiveness of the Aldi Product to consumers, and enhance sales. That principle – which is surely a basic principle of marketing retail goods such as these – must equally apply to the Thatchers Product, which Mr Watkins thought did a very good job of using whole lemons in its design of the Trade Mark to communicate to customers exactly what the Thatchers Product was. That is why one of his team members emailed Aldi’s third party packaging designers to say, “add lemons as per Thatchers”. He thought the presence of lemons was attracting custom. I agree.

For that reason I am satisfied that Thatchers had a reputation throughout the UK in relation to the Trade Mark by 19 May 2022.

Thatchers adopts the law for the assessment of section 10(3) infringement from HHJ Hacon’s summary in Urbanbubble Limited et Ors v Urban Evolution Property Management Limited et Ors [2022] E.T.M.R. 18, at [86] to [97]. Aldi cites W3 Ltd v Easy Group Ltd [2018] EWHC 7 (Ch), [2018] E.M.T.R. 40 at [294]. Both of these authorities rely on, inter alia, Specsavers at [120] and [121]. What is required of me is to consider whether use of the Sign gives rise to a link between the Trade Mark and the Sign in the mind of the average consumer, appreciated globally, having regard to all of the circumstances of the case. The fact that a Sign would call the Trade Mark to the mind of the average consumer, who is reasonably well informed and reasonably observant and circumspect, is tantamount to the existence of such a link. There is no need for confusion.

Thatchers rely on evidence made in consumer comments on social media about the Aldi Product (“a Thatchers Lemon cider rip off”, “my kids would call this a knock off brand”, “very good Thatchers cider rip-off”, “not quite Thatchers Lemon but for half the price there’s not much to complain about” and “Not as good as thatchers but still decent”) andoral comments that Mr Milton says were made to Thatchers’ staff (although he does not particularise those comments, saying merely that they referred to the similarities between Thatchers Product and Aldi’s Product), and comments on social media about the Aldi Product) to support its case that the Court can be satisfied that the average consumer would draw a link in his mind between the Sign and the Trade Mark, per Arnold J (as he then was) in W3 Ltd v EasyGroup Ltd [2018] EWHC 7 (Ch), [2018] E.T.M.R. 40 at [294]:

“Whether the use of the sign gives rise to a link between the sign and the trade mark in the mind of the average consumer must be appreciated globally having regard to all the circumstances of the case: see Adidas-Salomon v Fitnessworld at [29]-[30] and Specsavers (CJEU) at [120]. The fact that the sign would call the trade mark to mind for the average consumer, who is reasonably well informed and reasonably observant and circumspect, is tantamount to the existence of such a link: see Case C252/07 Intel Corp Inc v CPM United Kingdom Ltd [2008] ECR 1-8823 at [60] and Specsavers (CJEU) at [121].”

Aldi submits that the average consumer would not draw such a link, because of the dissimilarity of the Trade Mark and Sign (but I have found they are similar), the lack of reputation in the Trade Mark (but I have found there is a nationwide reputation and, indeed, enhanced distinctiveness) and that ‘THATCHERS” has no counterpart in the Sign (but I have found that it is a link between the whole Trade Mark and the Sign which is relevant).

Aldi further submits that evidence of consumers comparing the Aldi Product with the Thatchers Product is not sufficient as it only demonstrates a link between cloudy lemon cider products, and not the Trade Mark and the Sign. I accept that where, for example, that person has said that he couldn’t find the Aldi Product so he had to buy the Thatchers Product instead, that is not evidence of the use of the Sign calling to mind the Trade Mark, as it appears from that comment that he did not see the Sign at all. It is evidence only of an acknowledgment that both products are cloudy lemon cider products that he is willing to drink. I also accept that comments which amount to an expression of preference in relation to the taste of the two products, such as “not quite Thatchers Lemon but for half the price there’s not much to complain about” and “not as good as thatchers but still decent”, are not evidence that the Sign itself, rather than the fact that he is assessing the taste of the Aldi Product which is a cloudy lemon cider, has caused a link in that consumer’s mind with the Trade Mark.

However I am satisfied that there is some evidence, in comments about the Aldi Product being a “rip off” or “knock off” of the Thatchers Product, to support Thatchers’ case. Those consumers would not make those comments if they merely thought that both were cloudy lemon ciders (of which there are others in the market). They appear to have seen the Sign, which is a can of the Aldi Product, and that has brought the Thatchers Product, which bears the Trade Mark, to mind.

Taking all the relevant circumstances into account, and standing in the shoes of the average consumer, who has the qualities that I have already set out and who holds his imperfect recollection of the Trade Mark in his mind, I am satisfied on the balance of probabilities that seeing the Sign would call to mind the Trade Mark.

Smith J reviewed the authorities and summarised the relevant principles in Lidl Great Britain Ltd v Tesco Stores Ltd [2023] EWHC 873 (Ch), [2023] E.T.M.R 30 at [73(15) – [73(27)]. I will not repeat her work here. I note that in respect of detriment I am concerned with the weakening of the Trade Mark’s ability to identify the goods (in this case) for which it is registered, by use of the Sign (from Intel at [29]), and that detriment will be established where there is evidence of a change in the economic behaviour of the average consumer of the goods, or a serious likelihood that such change will occur in the future (per Argos v Argos Systems Inc [2018] EWCA Civ 2211).

With unfair advantage, I am concerned with whether Aldi has attempted, through use of the Sign which I have found to be similar to the Trade Mark (and which I have found has a reputation) to take advantage of, or ride on the coat tails of the Trade Mark in order to exploit it and gain a benefit from that reputation and the marketing efforts which have been made by Thatchers to promote it. (L’Oréal SA v Bellure NV (C-487/07) EU:C:2009:378, [2010] R.P.C. 1 at [41]).

In terms of an intention to take advantage of the trade mark’s reputation and goodwill, this is neither required nor determinative, per Arnold J (as he then was) who reviewed the authorities relating to intentionality in Jack Wills Ltd v House of Fraser Stores Ltd [2014] F.S.R. 39 at [75] to [80]. Where there is no intention, it is sufficient if the objective effect of the use complained of is to enable the defendant to benefit from the reputation and goodwill of the trade mark (see also Sky v SkyKick at [315]).

Unfair advantage requires a global assessment, taking into account all factors relevant in the circumstances of the case, including the strength of the Trade Mark’s reputation, the degree of distinctive character of the mark, the degree of similarity between the marks at issue and the nature and degree of proximity of the goods or services concerned. It may also take account, where necessary, of “the fact that there is a likelihood of dilution or tarnishment of the mark” (L’Oréal at [44] and [45]).

Thatchers submits that although it makes no complaint about Aldi’s process of benchmarking a new product to a market leader per se, being standard practice for retailers to benchmark their products to the market leaders, choosing successful flavours and range as the successful brands, the branding should then have been matched to Aldi’s own house style. The problem here, it submits, is that Aldi have significantly departed from the standard benchmarking process by not matching their own house style and deliberately choosing branding highly similar to the Trade Mark.

There are a number of things to be said in relation to this basic proposition, which Thatchers further elaborates in dealing with the issue of intention to deceive. The first is that this is not supported by the evidence. Thatchers’ own evidence is that the well-understood and acceptable process of benchmarking looks at the benchmark in relation to all aspects, not just flavour and quality. Mr Milton was clear that benchmarking involves looking at “product development, design, looking at every aspect of the marketing mix…” including what the benchmark looked like, and that he would expect there to be some visual resemblance between the product which resulted and the benchmark. The second is that I am not satisfied that Aldi has significantly departed from its house style. It has added lemons and lemon leaves to the Aldi Product to communicate the lemon-nature of the contents, but the bulls head device, the “TAURUS” branding, and the swoosh all remain intact in accordance with the established house style for the Taurus family of ciders.

I also remind myself that Mr Watkins said that Aldi added lemons to the Sign in part because Thatchers had, but mainly because lemons and lemon leaves (and particularly whole lemons, in his view) were very effective to communicate the fact to consumers that this was a lemon cider product. That second point is exactly the same reason given by Mr Milton to explain why Thatchers added lemons and lemon leaves to the design of the Trade Mark, to communicate to consumers that the Thatchers Product was a lemon cider, and not an apple-based cider like the rest of the Thatchers range. The Thatchers Product was produced following a market review in which Brothers’ Cloudy Lemon Cider, with its prominent lemon on the packaging, was one of the third party products considered. The fact that the Trade Mark alone communicated a zesty, fresh, lemoniness to Thatchers’ consumer focus group during the development of the Thatchers Product, was considered to be a success. No doubt the desire to communicate that a product is lemon-flavoured is also the reason why the producers of numerous other lemon-flavoured beverages, including lemon ciders, have added images of lemons, with and without their leaves, to the packaging of their products.

I considered in the context of likelihood of confusion Thatchers’ submission that the documentary evidence relating to Aldi’s design process, and Mr Watkins’ evidence of the changes that he required to be made from the first iteration of the design of the can of Aldi’s Product, should lead me to find Aldi had an intention, in designing the Sign, to benefit from Thatchers’ reputation and goodwill in the Trade Mark. I have already found that in my judgment Aldi, through Mr Watkins, has endeavoured to adopt a sign which is a safe distance away. Returning to Mr Alexander KC’s consideration of this problem in PlanetArt, he said at [80]:

“However, just as with trade mark infringement, some caution is needed in evaluating a defendant’s intention. There is a fundamental difference between a defendant’s intention to copy a claimant’s business and a defendant’s intention to represent falsely that it is or is connected with the claimant. While it may not always be easy to decide precisely what intention a defendant has, since that is rarely admitted by key witnesses and is usually concealed, it is important to make that distinction…”.

I note the warnings that Mr Alexander went on to make in that paragraph about the reliability of witness evidence in assessing a defendant’s intention. However, in this case, in my judgment, Mr Watkins’ evidence that his intention was that the Aldi Product should be clearly understood as a “TAURUS” branded cider is supported by the extensive use of the “TAURUS” brand, the bulls head device and the swoosh on the front and back of Sign as well as on those things which provide the context against which the Sign was intended to be seen by consumers, namely the cardboard packing of the 4-can pack and the SRP tray. It is also supported by the low degree of similarity of the Sign to the Trade Mark that I have found. On balance, I am satisfied that Aldi did not develop the Aldi Product, being the Sign, with an intention to take advantage of the goodwill and reputation in the Trade Mark.

Notwithstanding that finding, is the objective effect of the use of the Sign such to enable Aldi to benefit from the reputation and goodwill of the Trade Mark?

Mr Howe submits for Thatchers that I can be satisfied that the Sign caused a change in economic behaviour of customers, because the packaging of the Aldi Product was specifically designed to attract more customers, and was changed from the first iteration of the design, being the house style, to do so. As I pointed out in closing, surely all design decisions in relation to the look of packaging, where not legally mandated, are intended to make the products more attractive to consumers and encourage sales. The question is whether the similarities that I have found that between the Sign and the Trade Mark have caused consumers to change their economic behaviour (a likelihood of change not being relevant in this case where the Aldi Product is no longer on the market). Thatchers have not satisfied me that is the case. I have stated that the evidence of the sales achieved by Aldi for the Aldi Product which is the Sign do not look disproportionate in relation to sales of other ciders in the Taurus Family. Mr Milton’s evidence that they are astonishing and can only result from unfair advantage resulting from Thatchers’ investment in the promotion and marketing of the Trade Mark amount to little more than supposition, in my judgment.

Taking the global view, therefore, although I have found that Trade Mark has reputation gained in the course of trade, and that the Trade Mark as a whole has an enhanced level of distinctiveness because of the level of that trade and the promotion and marketing of it by Thatchers, I have also found that it has a low level of similarity with the Sign, and those elements which I have found are similar are either not distinctive because they are descriptive (the text), or are ubiquitous (the limited colour palette) or are commonplace (the use of lemons and lemons on lemon-flavoured beverages). I am not satisfied of an intention to exploit the reputation and goodwill of the Trade Mark or that the use of the Sign has objectively had the effect of doing so. I have in mind my views on tarnishment which I will now go on to set out. In these circumstances, the claim in unfair advantage fails.

Thatchers puts its case in detriment in two ways. The first relates to what it submits is the difference in taste between the Aldi Product and the Thatchers Product arising from their different composition. The second relates to what it submits is deceptive wording on the Aldi Product that it is made with premium fruit. I will take those in order.

I have conducted my own blind taste test as I was requested to do. I am no expert and have never tasted cloudy lemon cider before. I found the taste of the two products to be very similar, but I accept they are different.

Thatchers submits that it can be inferred from that difference, that some who buy the Aldi Product will like it and some will not. I accept that.

Thatchers submits that for those consumers who buy the Aldi Product and do not like it, given the link between the Sign and the Trade Mark which I have found, those consumers will perceive that the product sold under the Trade Mark will be affected, because it will be assumed to be the same as the Aldi Product when it is not.

Ms Wickenden for Aldi submits that a mere difference in taste between the Aldi Product and the Thatchers product is insufficient to establish a case of detriment to repute, and cites the summary of Kitchin LJ in Comic Enterprises at [119] discussing damage to reputation in the context of the CJEU case of L’Oréal. She submits that the CJEU’s reference to a likelihood of detriment arising from the fact “that the goods… offered by the third party possess a characteristic or quality which is liable to have a negative impact on the image of the mark” is not made out.

I am with Aldi. I am not convinced by the argument that those consumers, who I have found are not confused between the Trade Mark and the Sign but have formed a link between the two, so they know that they are drinking the Aldi Product, if they do not like the taste of it, will consider that makes the Thatchers Product sold under the Trade Mark a less attractive proposition. This is not a case, in my judgment, where the products are so significantly different that the taste of the Aldi Product is liable to cast the Thatchers Product sold under the Trade Mark in a negative light.

Thatchers further submits there is detriment to repute arising from the fact that although the Sign states that the Aldi Product is “Made from Premium Fruit”, it has no real lemon in it (although it does have real apples) and so this is deceptive to consumers. I spent some time with Mr Howe trying to understand how Thatchers put their case on this point. He submits that consumers who buy the Aldi Product knowing it is the Aldi Product, who rely on the statement that it is made from premium fruit as meaning that it is made with real lemons, but who later discover by reading the labelling on the back that it does not contain lemon juice but only ascorbic acid and lemon flavourings, may because of the link in their mind between the Sign and the Trade Mark, distrust the honesty of the claim on the Trade Mark that the Thatchers Product is made with real lemons.

I am not with Thatchers. It seems to me that if that situation should arise, the consumer may distrust Aldi, and learn a lesson about ambiguous tag-line wording and the need to check the label, but there is no reason to suppose that it will distrust Thatchers, when the wording on the Trade Mark is not ambiguous, and is supported by the information on the label on the back of the Thatchers Product.

For those reasons, the claim for section 10(3) TMA infringement fails.

This issue has fallen away given my determinations on s.10(2)(b) and s.10(3) TMA infringement.

For the reasons that I have given in relation to reputation, I am satisfied that it does.

There is no evidence before me that any consumers believe that the Aldi Product is that of Thatchers, for example that is manufactured, or licensed, or approved by Thatchers. For the reasons that I have given when finding that there is no likelihood of confusion, I am satisfied that there is no misrepresentation that Aldi is connected in trade with Thatchers. Accordingly, the claim in passing off fails.

I have found:

Accordingly, Aldi has not infringed the Trade Mark under section 10(2)(b) or section 10(3) TMA and is not liable in passing off. The claim will be dismissed.