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

Thatchers submits that the similarity of the Trade Mark and the Aldi Product is self-evident, whether one compares the Trade Mark with the Aldi 4-can pack or with an individual Aldi can. As I have found, the correct comparison is between the Trade Mark and the Sign, which is the overall appearance of an individual can of the Aldi Product. Mr Howe invited the Court to compare the physical Thatchers Product which bears the Trade Mark with the Aldi Product, saying that will demonstrate conclusively the similarity of the Trade Mark and the Aldi Product. In my view, this is impermissible. Thatchers has chosen to plead its case such that I must compare a two-dimensional mark, being the Trade Mark (which is not the Thatchers Product) with a three-dimensional product, being the Sign (which is a single can of the Aldi Product). That is of itself a point of difference between the two.

Thatchers submits that it was Aldi’s intention to produce a Sign which was similar to the Trade Mark and so it is not surprising that is what it has achieved. It sets out a number of matters which it says are “tell-tale points” of copying, including faint horizontal background lines in the Trade Mark, which are similar to those on the Sign, but this is not a copyright or a design case. It is a Trade Mark infringement action. I am satisfied that those lines are so faint that they would not be recalled as being present on the Trade Mark by the average consumer, who would also likely fail to perceive them on the Sign when picking the Aldi Product up off the shelf. Both witnesses conceded that, I believe, in oral evidence, and that is also my assessment. Mr Watkins, who was himself responsible for development to the Aldi Product, said that he had not noticed those faint lines on the Aldi Product until he read Mr Milton’s second witness statement pointing them out, and I accept his evidence. In my judgment they are not a relevant point of similarity for this exercise because they are negligible.