Food and drink brands make up the largest manufacturing sector in Scotland. The importance of trade marks and brand protection is therefore becoming increasingly prominent, especially as we see more and more new brands taking inspiration from the market leaders. The recent Thatchers vs Aldi cloudy lemon cider case in England has become a popular news story partly owing to the unconventional blind taste test undertaken by Judge Clarke when deciding whether there was a ‘likelihood of confusion’ between Thatchers’ Cloudy Lemon Cider and Aldi’s Taurus Cloudy Cider Lemon. The case does however deal with some important legal points that food and drink brands should reflect upon.
To determine that trade mark infringement had taken place, the judge had to decide whether the similarity of the Thatchers trade mark and the Taurus brand was high enough to create a likelihood of confusion in the public between the brands.
There were several obvious similarities – the lemons, the placement of the lemons, the yellow, black and green colour scheme, the central words ‘cloudy’, ‘cider’ and ‘lemon’. There are also several obvious differences - the words Thatchers and Taurus, the bull head, the ‘swoosh’ to the right hand side of the bull, and the roundel ‘Family Cider Makers’ in the Taurus brand.
Although it was agreed that Thatchers had built up a strong reputation in its cider, and that the trade mark had gained overall enhanced distinctiveness, the Court found that the dominating features of the two products were still the Thatchers and Taurus brands. The similarities, being the less distinctive elements, carried less weight in the eyes of the judge, and the marks were considered similar but to a low degree. Taken in context, there was no substantial evidence of confusion in the public between the two products or brands, and therefore there was no trade mark infringement.
It was found that Aldi’s product caused a link in the mind of the average consumer to the Thatchers product, and Aldi admitted to ‘benchmarking’ their product against Thatchers, given that Thatchers was the market leader. This is standard practice in the food and drink industry, and Thatchers failed to overcome the difficult hurdle of showing that Aldi intended to take unfair advantage of its product’s reputation or cause any detriment to it. This shows that products can be likened to each other by the public to a relatively high degree, but brands must have had the intention to ride on the coattails of another to satisfy the Court that unfair advantage has been taken.
It is important for brands to ensure their packaging is original, distinctive, and not simply descriptive of the product inside in order to ensure protection from copycat brands. This is arguably more difficult in the food and drink industry because branding needs to communicate to consumers what the product is. However, if you want to avoid being one of a few similar brands in the market, it is important to get creative and unique from the outset.
