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

Mr Milton said that as its first non-apple cider in over a century of trading, Thatchers was keen to produce branding for the Thatchers Product which was distinctive but fitted well within, and was instantly recognisable as being part of, the existing “brand family” of other Thatchers products. He described the key features of the brand look and feel across the existing range (which he described as the “structure and hierarchy” of the branding), whereby the wording “Family Cider Makers” is arched across the top, ‘Thatchers” has a prominent and large central position, there is a descriptor of the product immediately below, and a tag-line describing the product arched below that (“Zingy and Refreshing”, in the case of the Thatchers Product). He said that was a recognised style specific to Thatchers amongst consumers and retailers. To the extent he is describing the large text “THATCHERS surrounded by an arc or roundel of wording made up of “family cider makers” at the top and a tag-line at the bottom, I am willing to accept that those who are familiar with the Thatchers family of brands would recognise that as a specific style of Thatchers. I do not accept that the use of a prominent brand, followed by descriptive wording of what the product is (such as ‘Cloudy Lemon Cider’), followed by a tag line below that, is a recognised style specific to Thatchers. That can be seen on very many lemon-flavoured beverages on the market, including lemon cider beverages, illustrated at figures 2 to 6 to the Annex to this judgment, such as Brothers (which Mr Milton accepted was earlier in the market than the Thatchers Product), Lilley’s and Alska.

In cross-examination Mr Milton said that the Thatchers Product packaging was intended to be complementary but different to their other ciders, and as the market for a cloudy lemon cider was totally different to the apple-based ciders, they felt that they needed a bigger and bolder approach. He said the final version had a deliberately different overall look but retained some of the elements of the brand family, including the structure and hierarchy of the central elements. He points to the fact that Thatchers put red apples on the Thatchers Rosé product, and said that was chosen to communicate the difference between that and Thatchers Gold and Thatchers Haze, so they used images of lemons on the Thatchers Product to communicate that different ingredient in a consistent way. He accepted that Thatchers Gold and Thatchers Haze did not have images of apples on their packaging, and that although Thatchers Rosé had apples at the bottom right of the label, the Thatchers Product and the Trade Mark did not have lemons in that position. Mr Milton also pointed to fine horizontal lines in the background of each of the products in the brand as being a consistent motif. I will come back to that.

Despite its retention of some of the elements of the brand family in the packaging for the Thatchers Product, Mr Milton accepted in cross-examination that the overall look and aesthetic of the Thatchers Product was deliberately different to the other products in the Thatchers range, because of the departure they were making in making a non-apple cider for the first time. He agreed that Thatchers put lemons prominently on the packaging and the Trade Mark because “We are communicating clearly through the packaging exactly what is in the product”. He accepted that many lemon-flavoured beverages used lemons on their packaging for that reason.

Thatchers worked with external designers to reach the final design for the Thatchers Product which was eventually registered as the Trade Mark. Mr Milton said that in reaching the final design, Thatchers consulted with a number of retailers and also potential consumers about the overall look and feel of the packaging and the shelf stand-out. His evidence was that shelf-stand out was important because consumers will only look at products such as cider on a retailers shelf for a matter of a few seconds before deciding to buy. Mr Watkins also emphasised the importance of shelf stand-out, stating in cross-examination that a product which stood-out on the shelf would be more likely to be purchased. He also agreed that cider-buying decisions were made very quickly by consumers.

Mr Milton said that consumers scanning the shelves take cues from colour and shape, and he agreed with the contention put to him in cross-examination by Ms Wickenden that if they were looking for a product such as a lemon cider, they might be especially looking for the colour yellow, and possibly a more acid yellow than the softer yellows, ambers and golds which were often used across large elements of the beer and cider market. He said that yellow was a predominant colour in Thatchers Gold, for example, but in his view the bright yellow on the Thatchers Product was distinctive enough for consumers to distinguish it from that. On further questioning, he agreed that in order for a consumer to distinguish between Thatchers’ different yellow-coloured products, the lemons on the packaging and the very large words “Cloudy Lemon Cider” almost as large as the “THATCHERS” brand, would also play an important role.

Mr Milton was taken to a market research document disclosed by Thatchers and dated 10 October 2019, excerpts of which are in the Annex to this Judgment. He said this resulted from research carried out with consumers by Thatchers in conjunction with a retailer. He confirmed that the consumers were only commenting on the final form of the packaging of the Thatcher Product, and were told that they were being put together to test out the idea of a new fruit cider, but they were not shown or offered a taste of the liquid itself. The comments included “Colour scheme and information looks fresh, appealing, lemony, looking forward to trying this cider”, “Looks lemony, refreshingly modern and tasty”, “It screams lemon but is not in your face…”. Mr Milton said overall the feedback was positive and showed that the packaging met the intention of communicating that the product was a zesty lemon cider. I accept that evidence. Mr Watkins also volunteered in his oral evidence that he thought Thatchers had done a really good job of using whole lemons in the Trade Mark to communicate to customers exactly what the Thatchers Product was.