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

I am satisfied that the dominant elements of the Trade Mark are the central element made up of the “THATCHERS” brand with “CLOUDY LEMON CIDER” in large and decorative font underneath. Less dominant but also important are the whole yellow lemons with quite large green leaves disposed around the top and left edge; and the creamy-yellow colourway of the background.

The arc or roundel in the Trade Mark made up of the words “Family Cider Makers” at the top of the text and “Zingy and Refreshing” below are not negligible, in my view, but I doubt that the average consumer would bring the words to mind in his imperfect recollection. He might remember that there was something of the roundel about the Trade Mark, rather than exactly how that visual impression was created. Mr Milton’s evidence was that this arc and particularly the words “Family Cider Makers” were recognised by consumers, but he accepted that was probably only when the Trade Mark was in front of them, and that if they were looking at the Thatchers Product on the shelf they would likely be unable to read it unless they already knew it was there. I think that is right.

In my view the “Made With Real Lemons” wording is negligible for the purposes of this comparison. It may well be important for labelling purposes and to indicate quality to someone standing with a can in his hand, deciding whether to purchase. However I am satisfied that it would not be called to mind by the average consumer, being lost in the imperfect recollection that he has of the Trade Mark. Accordingly the overall impression of the Trade Mark carried in the mind of the average consumer is, in my judgment, dominated by “THATCHERS CLOUDY LEMON CIDER” within something of a roundel, with the lemons, leaves and background colour playing important parts.

In my assessment the dominant elements of the Sign are the central element on the front and back of the can, which is made up of the bulls head device with the brand “TAURUS” beneath. Also important but not dominant are the yellow, green and gold ‘swoosh’ emanating from the bulls head device in a curved arc both upwards and downwards, also on the front and back of the can; the whole yellow lemons disposed around the top, bottom and left edge front and back; and the creamy yellow background. I do not find the green leaves to be as important in the Sign as the Trade Mark, in part because they are smaller and detached from the lemons and in part because there is additional green on the Sign relating to the swoosh, which to my mind makes the leaves of less importance visually, but they are not negligible. Nor are the words “Cloudy Cider Lemon” as dominant in the Sign as the equivalent words are in the Trade Mark, because they are in a smaller font which is not decorative, so look merely functional and descriptive. They are also not as centrally placed, being on the lower portion of the Sign. In addition, the word “Lemon” is somewhat lost visually in yellow font on the cream background. The words “Made with Premium Fruit” are neither distinctive nor dominant.

I consider that the brand names THATCHERS and TAURUS are aurally and conceptually dissimilar. Visually, the first and last letters of each being the same brings a very small element of visual similarity but it is minimal, and the presence of the very distinctive bulls head device on the Sign underlines the conceptual and aural dissimilarity of those brands and in my judgment means that overall these dominant elements are dissimilar.

The swooshes on the Sign are important features which are not found on the Trade Mark and are a point of visual dissimilarity.

The cloudy lemon cider/cloudy cider lemon wording is visually similar, conceptually identical and aurally similar as they are the same words with the same meaning, but in a different order. However both are merely descriptive of the product to which the Trade Mark is applied/ which is within the Sign (being the can) and I am satisfied that the average consumer will understand that they have a functional use and are not operating as an indication of the source of the product. In addition, what makes this wording dominant in the Trade Mark (the size and decorative nature of font, its central positioning) is not replicated on the Sign, reducing the visual similarity, in my judgement.

The fact that whole lemons and green leaves are used on both the Trade Mark and the Signs is a point of visual similarity and conceptual identity, but in my view they are dealt with quite differently in:

Accordingly, I consider these differences considerably decrease the importance or weight of similarity of the fact of lemons and leaves in the overall effect produced by the Trade Mark and the Sign when considered as a whole.

The creamy yellow background of both the Trade Mark and the Sign, although not identical is a point of visual similarity, as is the reduced colour palette identified by Mr Howe.

Finally, there is no arched wording giving the effect of a roundel in the Sign as there is in the Trade Mark, which is a point of dissimilarity between them.