Judge invited to take cider taste test in High Court trade mark row

A judge has been invited to take a “taste test” of rival cider drinks in a High Court trade mark dispute between family firm Thatchers and German discounter Aldi.

Thatchers is suing Aldi for infringing the trade mark of its “cloudy lemon cider”, alleging that the supermarket chain’s Taurus brand “copycatted” its product.

It accuses Aldi of gaining an “unfair advantage” by copying the product Thatchers released in February 2020 “in both taste and appearance”.

As part of a trial starting in London on Thursday, lawyers for Thatchers argued the Taurus drink was “likely to misrepresent to consumers some commercial connection to Thatchers”.

The German retailer denies infringement and “passing off” its product, launched in May 2022, as one appearing to be from the family-run Somerset brewer.

Its lawyers also denied it was “riding on the coat-tails of the reputation” of the Thatchers brand.

Judge Melissa Clarke, who is overseeing the case, was invited by Thatchers’ barrister Martin Howe KC in his written arguments to “conduct a taste test” of the rival products.

“We suggest that such a test should be conducted as a blind test, so that the court is not swayed by any descriptions provided by either party,” he added.

Mr Howe said the Thatchers product was developed through “a comprehensive market analysis, feedback, and taste testing process, using over 25,000 litres of the initial cloudy lemon product”.

He said the company spent nearly £3 million on marketing between 2020 and 2022 and had sold £20.7 million worth of the cloudy lemon cider drink as of September last year.

The barrister said Aldi had achieved “extraordinarily high” sales of its Taurus product, more than £1.4 million, after a “lack both of development investment, or marketing spend”.

He said this “can only have been achieved by reason of Thatcher’s investment in the Thatchers Product”.

In written arguments, Stephanie Wickenden, for Aldi, said the court should “dismiss the claim in its entirety”.

She said: “The Aldi product is well distinguishable from the Thatchers product by reasons of its different brand name and logo.

The barrister added of the packaging: “There are key differences in the stylisations of lemons and their leaves, and the words ‘cloudy’, ‘lemon’ and ‘cider’ are in a different order.

“In any event, Thatchers has no proprietary rights in the concept of such descriptive elements.”

She said the “core of the distinctiveness” of the Thatchers trade mark was the brand name, with other aspects being “descriptive or at most anodyne”.

“It is denied, as a matter of principle, that there can be any riding on the coat-tails of the reputation of the (Thatchers trade mark) when the only congruence is in non-distinctive or anodyne elements,” she said.

The trial continues, with a ruling expected at a later date.

It comes after Aldi lost a court battle with Marks and Spencer after being accused of copying its light-up Christmas gin bottles.

The High Court ruled in February that Aldi infringed the design of its rival’s product, despite the German discounter denying the accusations.