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

Mr Watkins has disclosed sales figures for various products within the Taurus range in 2021, 2022 and 2023 (year to date up to trial). That shows that Taurus Original cider as the biggest seller, with 3-years sales of 4-packs of cans at £19.5m and a further £15m in 2-litre bottles. Of the other 8 ciders in the range, Taurus Pear and Taurus Dark Fruit remained on sale for the whole of the period, and achieved 3-year sales in 4-packs of cans of £11.5m and £14.4m respectively. Taurus Cloudy Cider sold £1.3m in 2021 but was then discontinued so made minimal sales in 2022 and none in 2023.

Four ciders launched in 2022, including the Aldi Product with which I am concerned. That achieved £1.66m in sales in its first year of launch but only £0.6m of sales in 2023. Mr Watkins says, and I accept, that is because it was a seasonal variant, produced in limited quantities with the aim for it to sell-out within a period of months, and it did sell out within 10 months of launch. The next most popular on launch in 2022 was Taurus Cherry, another seasonal variant intended to be a sell-out, with £0.8m of sales in 4-packs of cans in 2022 and £1m in 2023. No issue was taken with the figures provided, and I accept them.

No evidence has been put forward by Aldi in relation to any marketing spend or marketing efforts that have been carried out in promoting the Aldi Product. Mr Milton in his second witness statement describes the sales figures achieved by the Aldi Product of over £2.4m in 2 years (in fact, as Mr Watkins clarified, that was over £2.4m in 10 months) as “astonishing considering Aldi appear to have made no investment in consumer marketing for this product”. He says that it is unlikely that Aldi would have achieved those figures “without Thatchers’ significant brand and marketing spend which drove consumer awareness of Cloudy Lemon. Apart from Aldi benefitting from Thatchers’ investment and effort promoting [the Thatchers Product], I also consider that Aldi’s Product, marketed at a lower price to [the Thatchers Product], has had a negative impact and diluted the premium price and brand image of [the Thatchers Product]in the minds of consumers”. This appears to be the basis on which Thatchers runs its arguments on damage in relation to section 10(3) infringement.

In fact, looking at the sales figures for the Aldi Product in the context of the overall 3-year sales figures for the Taurus family of ciders as a whole as set out in tabular form in Mr Watkins’ first witness statement, I do not find them astonishing. Taurus was an established brand and in 2022, when the Aldi Product was launched, the sales achieved by the three regular flavours (Taurus Original, Pear and Dark Fruit) were over £16m in 4-can packs and a further £5m of Original in 2 litre bottles.

The Aldi Product sales over its short life in 2022-2023 at £1.6m in the 2022 sales seems to be (a) in proportion with the £1.4m sales of Taurus Cloudy Cider in 2021 with a run-off in 2022, when it was discontinued; (b) about the same level of sales over the same period of Taurus Rose, which was also discontinued in 2023, although that had also sold very well in 2021, and (c) although higher than another seasonal variant launched in 2022 and sold in 2022-23, Taurus Cherry, at £1.83m in total, I cannot see that this is disproportionately higher, given the popularity of lemon-flavoured drinks over cherry-flavoured drinks and in the context of the figures as a whole.