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

Mr Milton’s evidence is that in 2018 Thatchers produced only apple-based ciders. Thatchers’ flagship apple cider, and the oldest product still on sale, is ‘Thatchers Gold’. It also had, and still has, a cloudy cider called ‘Thatchers Haze’ and an apple-based pink cider, with the colour derived from the skin of red apples, called ‘Thatchers Rosé’. At that time it had no presence or brand in fruit-flavoured (i.e., non-apple-based) ciders. It identified what it considered to be a gap in the fruit cider market for a citrus-based cider, at a time when there was an emerging trend for lemon-flavoured alcohol products generally, including lemon flavoured gin. Mr Milton accepted in cross-examination that Thatchers was not the first producer to make a lemon cider for the UK market, however.

Thatchers carried out a broad market analysis of lemon-flavoured drinks including non-cider products and both alcoholic and non-alcoholic drinks at an early stage of product development, to get a good overview of what existed in the marketplace, what was successful and what was not. I have seen some documentation evidencing that. Mr Milton said that some of the products on the market featured lemons and a yellow and green colour scheme and others did not. Excerpts from this market analysis showing other third-party beverages in the market at or shortly before the time of that analysis are contained in Figures 2, 3, 5 and 6 of the Annex to this judgment. Figure 4 depicts another third-party brand of lemon cider sold by Aldi, Alska.

Mr Milton says that Thatchers identified one possible concept which it tested in the trade, although that proved not to be popular. It identified another possibility within the NPD tasting process, and this was produced for internal feedback, which was positive. It produced a larger batch of around 25,000 litres which it took to the trade, resulting in what he described as extremely positive feedback and a number of commitments to buy, and following further evaluation and Board approval, the Thatchers Product was launched in February 2020.

Mr Milton’s unchallenged evidence is that the Thatchers Product is made with real lemon fruit juice and also a natural flavour, together with apple juice from dessert apples which gives a natural clouding effect to the resulting beverage. He said that although more expensive than using cider apples, this also gave a sweeter, fuller and more rounded mouthfeel. By contrast, he said, Aldi’s Product label discloses that it contains no lemon juice but only citric acid and lemon flavouring, which is why it is labelled “cloudy lemon flavoured cider” instead of “cider with lemon juice”. Mr Watkins agreed that was the case in cross-examination. Mr Milton said Aldi’s product obtains its cloudiness (which he described as “unnatural and uniform”) by use of a cloud stabiliser. This can be seen on the label of the Aldi Product.