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

Thatchers trades primarily through supply of products to supermarkets and other retail outlets. It disclosed a table in its Particulars of Claim (which stands as evidence in IPEC) showing that 98.8% of sales of the Thatchers Product were in retail outlets, of which 51.3% were supermarkets, 12.9% convenience stores and 34.6% were wholesale cash and carry outlets. I accept that evidence which was not challenged in cross-examination.

Mr Milton’s evidence is that from August 2020 to August 2022 Thatchers invested in excess of £2.9m promoting the Thatchers Product through TV advertising, outdoor posters and billboards, brand experience/sampling and trade PR. He was questioned about that figure in cross-examination by reference to various disclosed invoices, in particular whether all of that spend did indeed relate to the Thatchers Product or other products produced by Thatchers, but was unable to give evidence about exactly how that figure was arrived at as he said it was produced by the Thatchers Director of Marketing and not by him. Nevertheless he said that he had sat in Thatchers Board meetings for 15 years, and that figure accorded with his knowledge and memory of what the Thatchers Board had agreed to spend on marketing the Thatchers Product in the relevant years. On the balance of probabilities, I accept that Thatchers did spend about £2.9m promoting the Thatchers Product in that time.

Mr Milton says that within this period Thatchers launched an online campaign for the Thatchers Product via Thatchers’ social media accounts on Instagram, Facebook, X (formerly Twitter) and Linked-in, each of which have between 12,000 and 96,000 followers, which he said reached 13.86 million people. Aldi admitted this in the defence. He says that Thatchers also conducted a summer marketing campaign in 9 major cities in the UK and advertised outdoors in holiday destinations in South Wales and the South West, achieving a further 12 million impacts. He was not challenged on this in cross-examination, and I accept it.

Aldi admits that the Thatchers Product was named the World’s Best New Launch Design for 2020 in the World Cider Awards, which Mr Milton said, without challenge, indicated consumer buying trends and interest.

I accept Mr Milton’s evidence that since launch of the Thatchers Product to August 2023, Thatchers have sold 11.6m litres of the Thatchers Product amounting to £29.6m in sales at retail value (not including pubs and bars). He confirmed that Thatchers does not and has never supplied the Thatchers Product to Aldi, although Thatchers previously supplied apple cider products to Aldi. Aldi says that stopped in 2012.