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

Thatchers relies on the evidence of a single witness. Mr Christopher Milton was a director of Thatchers for over 14 years until 31 May 2023 and remains a consultant to Thatchers. He filed two witness statements dated 14 September 2023 and 13 October 2023, the latter in reply to the witness statement of Mr Watkins for Aldi. Mr Milton attended trial and was cross-examined by Ms Wickenden. Mr Milton appeared to be a straightforward, credible and reliable witness who came to Court to assist it to the best of his ability. Ms Wickenden says Aldi makes no criticism of him at all.

Aldi raised in pre-trial correspondence, and at trial, objections to the admissibility of parts of Mr Milton’s second witness statement. Ms Wickenden limited these admissibility objections in her oral submissions and after hearing these and the oral submissions of Mr Howe there seemed to be agreement with my expressed opinion that Mr Milton’s evidence trespassed on areas for my judicial determination in parts of paragraph 13 (4^th sentence onwards), paragraph 19 (3^rd and 4^th sentence) and paragraph 35 (3^rd sentence, and 5^th sentence onwards), and in the whole of paragraph 32. To the extent that it does, it is not admissible, and I have not taken account of this evidence. There remained a dispute about the admissibility of the second sentence of paragraph 8, but it seems to me that falls within admissible trade evidence of the type described by Birss J, as he then was, at [35] of Robyn RihannaFenty v Acadia Group Brands Limited (T/A Topshop) (No.1) [2013] EWHC 1945 Ch, [2013] FSR 37.

Aldi relies on the evidence of two witnesses. Mr Mark Watkins has been a Buying Director since September 2018 and has had responsibility for beer and cider products since January 2020. His witness statement is dated 15 September 2023. Mr Watkins addresses the history of Aldi’s Taurus brand, Aldi’s history of sales of cloudy lemon cider, and the development of the Aldi Product. Mr Watkins attended trial and was cross-examined by Mr Howe. In Thatchers’ skeleton argument a number of points were raised about the adequacy of Aldi’s disclosure, and whether adverse inferences should be drawn about the failure of Aldi to document what Mr Watkins says were a number of supermarket and retailer visits carried out as part of market research into the cider sector, the brief given to the external designers working on the packaging of the Aldi Product, etc. In fact I have not been asked to make those inferences. Mr Watkins gave what I considered to be straightforward and honest evidence that as part of Aldi’s lean and efficient business model it did not document retailer and market research visits and it mostly gave feedback to designers orally. Such correspondence as there was (and there are some emails in the trial bundles) have been disclosed. As Ms Wickenden pointed out in closing, Thatchers’ argument in its skeleton that Aldi conducts its business deliberately so as to avoid creating a paper trail which it would have to disclose in litigation was not put to Mr Watkins and appears to have been abandoned.

Mr Howe for Thatchers submits that Mr Watkins was unwilling to make fair concessions and that I should treat his evidence in relation to the extent to which the Thatchers Product was used as a benchmark for the Aldi Product with scepticism and scrutiny, but does not submit that I should find that he was being untruthful, although he put this to Mr Watkins at various points of his cross-examination. Ms Wickenden asks me to remember that Mr Watkins is not a company director of Aldi (his job title notwithstanding), and he is not a trade mark lawyer. She submits that he came to Court to give honest evidence, he did his best under robust cross-examination, and he did make a number of fair concessions. I agree, and I accept his evidence as both credible and reliable. I thought Mr Watkins had a tendency to provide answers to questions that were not asked and in doing so avoid questions that were, but I do not think this was deliberate as after I had reminded him to listen to questions and answer them directly, he did so.

Mr Lloyd Lane is a solicitor at Freeths, who acts for Aldi in these proceedings. He filed a witness statement dated 8 September 2023. In that witness statement Mr Lane introduces publicly available UKIPO documents, and private UKIPO correspondence with Thatchers’ agents and high-resolution images which have been disclosed by Thatchers in these proceedings. He made himself available at trial but the Defendants had no questions for him and so he was not called and the facts in his evidence are unchallenged. Thatchers makes submissions about the relevance of his evidence to the issues, and as can be seen from the fact that I have not found it necessary to refer to Mr Lane’s evidence other than in passing, I accept those submissions.