Is the Supreme Court denial in Thatcher’s case a fatal blow against lookalikes?

The dispute between Thatcher’s Cider Company and Aldi Stores Limited has been long running and has sparked legal controversy along the way. On 4^th June 2025 the Supreme denied Aldi leave to appeal an earlier judgment of the Court of Appeal that it had infringed a UK trade mark registration for the label of Thatcher’s lemon cider product bringing the long running dispute to a final conclusion. The question though is has this case changed anything with regards the longstanding practice, particularly in the food and drink sector by UK retailers of so-called lookalikes. With the Supreme Court’s decision to deny leave to appeal, it is probably a good time to take our own leave and consider where we are the lookalike battles.

From a commercial perspective, I suspect that the case which Thatcher’s ultimately won may make retailers more suspect about using lookalike packaging and branding. I suspect they will be more circumspect in their pre-launch searches and may take more note of their legal teams concerns. Also I suspect this case, will encourage brand owners to consider the wider registration of brand packaging and labels beyond simple word marks.

However, will this case halt the practice of benchmarking a market leader? Probably not. Cases of this nature often turn significantly on questions of fact and the fact that the Thatcher’s Cider Company had prudently registered the label of their cider product was a significant factor them ultimately succeeding in this case. What is too close will always be matters of degree.

Is the case truly different that those that have gone before legally? The answer to this question in my opinion is no, and the fact that the Supreme Court denied Aldi leave to appeal possibly supports that contention.   The Court of Appeal found infringement of Thatcher’s Cider label trade mark registration under Section 10(3) of the Trade Marks Act 1994 essentially holding that the Aldi Taurus lemon cider label did ride on the coattails of the Thatcher’s branding.

Paragraph 114 for the Court of the Appeal crystalising the overall judgment:

“In my judgment Thatchers is correct that the present case is squarely within the Court of Justice’s description in L’Oréal v Bellure at [41] and [49] of “a transfer of the image of the mark” and “riding on the coat-tails of that mark”. For the reasons given in paragraph 99 above, it is clear that Aldi intended the Sign to remind consumers of the Trade Mark 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. As explained in paragraph 92 above, that has at least evidential relevance. Furthermore, it is clear from the social media evidence referred to by the judge at [118] that at least some consumers received the intended message loud and clear. There is no reason to think that they were atypical. As explained in paragraphs 104 and 109 above, Aldi was able to achieve substantial sales of the Aldi Product in a short period of time without spending a penny on promoting it. In the absence of evidence that Aldi would have achieved equivalent sales of the Aldi Product without use of the Sign, and hence without consumers making a link between the Sign and the Trade Mark, it is a legitimate inference that Aldi thereby obtained the advantage from the use of the Sign that it intended to obtain. 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.”

However, are these statements ground breaking? In my opinion no. It possibly that Aldi simply went too far this time and Thatcher’s prudently had the correct form of trade mark registration to successfully challenge them.

So to quote Jean-Baptiste Alphonse Karr ‘plus ça change, plus c’est la même chose’, the more things change the more they stay the same.

This article was prepared by Partner and Trade Mark Attorney Lee Curtis