Thatchers wins lookalike trade mark dispute with Aldi
Insight

Family-run cider brewer Thatchers has won its appeal against discount supermarket Aldi for trade mark infringement over its cloudy lemon cider. The Court of Appeal found that Aldi had used a sign for its own lemon cider to remind consumers of Thatchers’ trade mark “in order to convey the message that the Aldi product was like the Thatchers product, only cheaper”. In doing so, Aldi had taken unfair advantage of the reputation of the Thatchers brand. The case sends a clear message that the courts will not allow discount retailers to compete with established brands using lookalike packaging or signs.
Background to Thatchers’ appeal
Thatchers launched its cloudy lemon cider in February 2020. Between 2020 and 2022, Thatchers spent around £3m promoting its lemon cider – including through TV advertising, billboards and online campaigns – and enjoyed significant market success (by September 2022, it had made more than £20m in sales of its lemon cider at retail value).
Aldi (which is well known for its adverts featuring the slogan “like brands, only cheaper”) has sold cider in a range of flavours under the brand name Taurus since 2013. In May 2022, Aldi launched a Taurus cloudy lemon cider.
Below is the Thatchers registered trade mark (“the Trade Mark”) on the left; a can of Thatchers lemon cider (displaying the Trade Mark) in the middle; and a can of Aldi’s (Taurus) lemon cider (displaying “the Sign”) on the right:
In September 2022, Thatchers brought proceedings in the Intellectual Property Enterprise Court (“IPEC”) against Aldi for infringement of its Trade Mark pursuant to section 10(2) and 10(3) of the Trade Marks Act 1994 and for passing off. In January 2024, IPEC ruled in Aldi’s favour, finding that there was low overall similarity between the Trade Mark and the Sign (section 10(2)); that Aldi had not taken unfair advantage of the Trade Mark and had caused no detriment to it (section 10(3)); and that there was no misrepresentation by Aldi (and therefore no passing off).
Thatchers appealed against the dismissal of its claim under section 10(3) only. Section 10(3) provides extended protection for trade marks with a reputation. It states that a person infringes a trade mark if they use in the course of trade, in relation to goods or services, a sign which is identical with or similar to the trade mark, where the trade mark has a reputation in the UK and the use of the sign, being without due cause, takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the trade mark.
Court of Appeal ruling
Thatchers’ appeal was heard by the Court of Appeal in December 2024 with judgment being given on 20 January 2025.
Lord Justice Arnold, delivering the lead judgment, said that the first instance judge had construed the scope of the Trade Mark too narrowly. There was a closer similarity between the Sign and the Trade Mark than the judge had found. Therefore, the Court of Appeal could consider the section 10(3) infringement issues afresh on the facts.
Lord Justice Arnold noted that it was plain from a comparison between the Sign and the Trade Mark that the former closely resembled the latter. He said it would be possible to convey that a product is lemon-flavoured without such a close resemblance, and that the resemblance between the Thatchers’ packaging and the Aldi packaging therefore “cannot be coincidental”. This was further confirmed by Aldi’s departure from its house style for Taurus cider (e.g. the word TAURUS in black on a pale yellow background for the lemon cider, instead of its usual TAURUS in white on a black background). The Court of Appeal also took into account evidence that Aldi used Thatchers’ product as a benchmark for the design of its own packaging (e.g. the Court was shown an email in which an Aldi representative asked the agency designing the Taurus lemon cider packaging to “add lemons as Thatcher’s [sic]”).
This led the Court of Appeal to find that:
“The inescapable conclusion is that Aldi intended the Sign to remind consumers of the Trade Mark. This can only have been in order to convey the message that the Aldi Product was like the Thatchers Product, only cheaper. To that extent, Aldi intended to take advantage of the reputation of the Trade Mark in order to assist it to sell the Aldi Product. The fact that […] Aldi did not intend consumers to be deceived, or even confused, as to the trade origin of the Aldi Product does not detract from this.”
The Court of Appeal noted that Aldi was able to achieve substantial sales of its Taurus lemon cider in a short period of time “without spending a penny promoting it”. In the absence of evidence that Aldi would have achieved equivalent sales without the use of the Sign and without consumers making a link between the Sign and the Trade Mark, the Court said that it was a legitimate inference that Aldi thereby obtained the advantage from the use of the Sign that it intended to obtain. It added: “That was an unfair advantage because it enabled Aldi to profit from Thatchers’ investment in developing and promoting the Thatchers product rather than competing purely on quality and/or price and on its own promotional efforts.”
The Court of Appeal therefore found that Aldi had infringed the Trade Mark under section 10(3).
Implications
The judgment is another example of the recent judicial trend to clamp down on lookalikes and widen section 10(3) infringement. In 2024, the Court of Appeal largely upheld the findings made against Tesco under a section 10(3) claim that its Clubcard logo infringed Lidl’s brand (see our article on that decision here). In those proceedings, it was ruled that Tesco’s use of a yellow circle in a blue square in its Clubcard campaign conveyed to consumers that Tesco was price matching to Lidl, which caused detriment to Lidl and diluted its trade mark.
These decisions also highlight just how important it is for brand owners to ensure they have registered trade mark protection so that they can rely on section 10(3) in cases where consumer confusion cannot be demonstrated and therefore a claim under passing off will fail.
Finally, they are a warning to businesses (such as budget supermarkets) which offer cheap lookalike products to compete with established brands – if they take advantage of another brand’s reputation and marketing efforts, then this alone can be trade mark infringement.
Aldi has indicated that it intends to appeal the Court of Appeal’s decision to the UK Supreme Court. It will be interesting to see what (if anything) happens next.
The full Court of Appeal decision is here: Thatchers Cider Company Ltd v Aldi Stores Ltd [2025] EWCA Civ 5 (20 January 2025).
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, January 2025