Intellectual Property Enterprise Court

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

Fecha: 24-Ene-2024

ISSUES

ISSUES

I find it convenient to consider the issues relating to trade mark infringement out of the order in which they appear on the List of Issues. I will consider Issues 2 and 3 relating to section 10(2)(b) infringement first, before going on to consider Issues 1 and 4 in relation to section 10(3) infringement.

Issue 2 - Is the overall appearance of the Aldi Product, as defined in paragraph 14 of the Particulars of Claim (“the Sign”) similar to the Trade Mark?

Average consumer

72.

There is no dispute in this case as to who is the average consumer. That is a retail purchaser of alcoholic beverages, including cider.

73.

In closing, Mr Howe sought to submit that I could take into account the view expressed in correspondence by Aldi’s third party manufacturer of the Aldi Product, Aston Manor, that the appearance of the packaging of the Aldi Product was “incredibly close” to that of the Thatchers Product as representing how consumers would view it. I decline to do so for two reasons. Firstly, because Aston Manor is not the average consumer, it is a manufacturer and packager of alcoholic drinks, including the Aldi Product. Secondly, because as I remarked to Mr Howe, Aston Manor had information which the average consumer would not have had. It knew at the time that Aldi was finalising the design of the Aldi Product that Thatchers had objected to the packaging of a cloudy lemon cider product of another supermarket. The average consumer would not.