Can brands stop supermarkets copying their products?

A lookalike product, as the name suggests, is one that has a similar look and feel to another branded product, triggering a link in consumers' minds between the two. When a lookalike product mirrors the features of an original branded product, it may persuade a shopper to buy it on the assumption that it is of the same quality as the original, but at a lower price.

This is something that is backed up by consumer behaviour research, which has highlighted the strong influence that a product's visual features, such as colour, shape and overall image, have on purchasing habits.

Supermarkets in particular have had considerable success with this approach, as brand owners have shied away from disputing the imitation of their well-known products for fear of losing shelf listings and the high cost of taking legal action.

However, a handful of brands have recently shown a willingness to challenge these practices, and most people will be familiar with the highly publicised dispute between M&S and Aldi over their respective Colin and Cuthbert caterpillar cakes.

What happened in Thatchers v Aldi?

This year, lemon cider has been in the spotlight following the recent Court of Appeal decision in Thatchers v Aldi. Thatchers first raised its claim against Aldi in 2022 in the Intellectual Property Enterprise Court (IPEC), arguing that Aldi's Taurus cloudy lemon cider infringed Thatchers' trade mark, namely the packaging artwork used for Thatchers' own cloudy lemon cider. The IPEC threw out Thatchers' claims, and Thatchers appealed.

In what may be a watershed moment for brand owners, the Court of Appeal has partially overturned the IPEC's decision, finding that Aldi took unfair advantage of the reputation of Thatchers' trade mark, in breach of trade mark legislation.

The court considered the degree of similarity between Thatchers' mark and the sign Aldi was using on its product and found that the IPEC had incorrectly identified the sign as being the 3D packaging of Aldi's product, when in fact it was the 2D graphics on the packaging, and so the court decided that the Aldi sign closely resembled Thatchers' mark.

The court also ruled that Aldi had transferred the image of the Thatchers trade mark onto their own product and was "riding on the coat-tails" of the Thatchers mark to send a message to consumers that its product was like Thatchers' product, only cheaper.

It was also significant that Aldi had noticeably departed from its house style to imitate Thatchers' product and had benefited from Thatchers' £2.9 million marketing efforts.

There was no evidence that Aldi had spent any money promoting its product, whereas social media posts showed that consumers had linked the two products and picked up on Aldi's message. Even though Aldi may not have intended to deceive consumers, it intended to take unfair advantage of Thatchers' mark by using a lookalike sign.

What does the ruling mean for brand owners?

1. Register the whole design of a product's packaging. This is a useful tool to effectively protect your brand and was essential to Thatchers' success.
2. Evidence is important. If you believe there is a product on the market infringing on your brand, you should gather as much evidence as you can to support this.
3. Proving consumer confusion is not a requirement when arguing that the use of a lookalike sign takes unfair advantage or damages the reputation of a trade mark.
4. Adopt honest practices around product packaging design. While helpful to understand the market, businesses should benchmark prudently to avoid claims that they have transferred the image of another product onto their own.
5. Watch this space. Aldi has said it will appeal to the Supreme Court, and so the legal position on lookalike products may yet change.

The protection of a trade mark is valuable, and it is never too early to take advice to protect your brand.