Intellectual Property Enterprise Court

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

Fecha: 24-Ene-2024

Further submissions on similarity

Further submissions on similarity

76.

Thatchers accepts that the “THATCHERS” brand is a dominant component of the Trade Mark. However, it submits:

that although it has accepted in its pleadings that Aldi’s brand name “TAURUS”, considered as a word in isolation, is different from “THATCHERS”, they are visually similar as they begin and end with the same letters, and they form only one element of a composite Trade Mark and Sign (in fact the “TAURUS” brand and bulls head device appear twice on the Sign, once on the front and once on the back of the can);

ii)

the positioning of the lemons on the Sign is in the same configuration as the Trade Mark, save that the Sign has an extra lemon at the bottom right, both front and back;

iii)

although Thatchers do not assert a monopoly on the words “Cloudy Cider Lemon”, the way the words are used and arranged within the Sign is similar to that of the Trade Mark;

iv)

the entirety of the text of the Sign is arranged in a similar configuration to the entirety of the text on the Trade Mark, with:

the brand at the top on both,

then the words “Cloudy Lemon Cider” one above the other on the Trade Mark and “Cloudy Cider Lemon” one above the other on the front and back of the Sign,

then the tag-line “Zingy & Refreshing” followed by “Made with Real Lemons” on the Trade Mark echoed by “Made with” followed by “Premium Fruit” on the front and back of the Sign;

the colour scheme of both the Trade Mark and the Sign are highly similar, with the only colours being yellow, cream, black and green on both;

vi)

although Thatchers does not assert a monopoly in putting pictures of lemons on lemon-flavoured cider, there are many ways that one can depict lemons without coming up with the degree of closeness that Aldi has done, in choosing to use whole lemons rather than cut lemons, in using lemons with green leaves rather than the fruit alone, and in the way they have chosen to dispose of them within the overall arrangement of the Sign, which is similar to that of the Trade Mark.

77.

Aldi submits that the only similarities actually particularised by Thatchers in the particulars of claim are the points made about the “THATCHERS” and “TAURUS” brand names, the positioning of those centrally, and the fact that the brand names are both in black font. It submits that the only elements which are arguably similar are the words “Cloudy” “Lemon” and “Cider”, the graphic designs of lemons and leaves which are, it submits, treated quite differently in the Trade Mark and the Signs, and the colours green and yellow being the colours of lemons and leaves. It submits these are either descriptive or decorative and lacking in inherent distinctiveness.