IP Ingredients: Pouring Over the Verdict: What Thatchers v Aldi Means for Food & Drink Brands

Readers of our IP Ingredients blog may recall that we covered something of this case last summer in our post IP Ingredients: Summer case law review.

The dispute between Thatchers and Aldi over the packaging of Aldi’s Taurus Cloudy Lemon Cider has continued in the meantime, with an appeal filed to the Court of Appeal by Thatchers against the dismissal of its claim under section 10(3) of the 1994 Act. Section 10(3) covers cases where a trade mark has a reputation in the UK and the use of the conflicting sign would, without due cause, take unfair advantage of, or be detrimental, to that reputation. A full report on the decision has previously been published on HGF’s website by my colleagues Josephine Carver and Marie McMorrow (see Aldi v Thatchers: The fine line between fair competition and unfair advantage). But beyond the legal principles, what does this mean for food and drink brands navigating an increasingly competitive market?

A Reminder That Packaging Is More Than Just a Label

In the food and drink sector, branding is more than just a name or a logo – it’s the complete visual identity of a product. Consumers rely on packaging design, colour schemes, and branding cues to identify their favourite products on crowded supermarket shelves.

The latest decision in Thatchers v Aldi underscores that brands in this space can and should identify ways to protect not just their names, but also the distinctive elements of their packaging. The Court of Appeal found that Aldi’s use of similar colours, imagery, and layout created an unfair association with Thatchers’ trade mark, even though Aldi’s product was clearly labelled under its own Taurus brand.

Thatchers were able to run this argument under Section 10(3) because they had successfully secured a trade mark registration for their packaging design. Had they not done so, they would not have been able to bring a claim under this ground as it requires the comparison to be made with a registered trade mark.

For food and drink businesses, this confirms that trade mark protection extends beyond traditional word marks – it can also cover distinctive packaging and branding choices that have built consumer recognition. It is also important to obtain trade mark registrations, or other intellectual property protection (e.g. copyright and designs) where possible, for those distinctive branding elements to support any enforcement actions that might be required in the future.

Supermarket Own-Brands: Where Is The Line?

Supermarkets and discount retailers have long embraced own-brand strategies, offering alternatives to well-known branded products at lower prices. Benchmarking is also a well known strategy for developing new products and their packaging. While this is not inherently problematic, this case highlights the risks when that strategy relies on mimicking the look and feel of an established brand.

For brands in the food and beverage industry, this decision suggests a stronger basis for challenging lookalike products that don’t just compete on price and quality but also aim to result in a transfer of image from the established market presence of a competitor. The key takeaway? If an own-brand product is designed in a way that leads consumers to be reminded of or brings to mind, another and potentially more premium product, even without confusion, it could still constitute trade mark infringement.

For retailers, this case is a warning that closely aligning own-brand packaging with a competitor’s visual identity may cross the line into unfair advantage, particularly where:

• inessential details are replicated without any other explanation for their presence.
• the new design represents a significant departure from the house style for that brand
• the design process revealed by the documentary evidence leads to a conclusion that there was an intention to create a design that reminded consumers of the competitor/benchmark brand.
• Significant sales are achieved in a short period of time without any promotion.

The Importance of Investment In Brand Reputation

One of the most compelling aspects of this case was the Court’s recognition of unfair advantage and the transfer of image – the idea that Aldi was benefiting from Thatchers’ years of and significant investment in branding, marketing, and consumer trust.

For food and drink brands, this ruling reinforces the importance of building and protecting a strong identity as discussed above. The significant sales of Aldi’s Taurus Cloudy Lemon Cider – achieved without advertising – suggested that it gained traction because consumers already associated the look of the product with Thatchers. The Court found this unfair because Aldi had not invested in creating its own brand equity but instead leveraged the visual cues Thatchers had established in the market.

For brand owners, this highlights the value of distinctiveness. Investing in packaging, storytelling, and brand presence doesn’t just drive sales – it also supports legal grounds for protecting against those who wish to take unfair advantage of those efforts rather than competing purely on the merits of their own products and promotional efforts.

Looking Ahead: What This Means For Food & Beverage Innovation

With the rise of private-label and own-brand alternatives, the balance between competition and brand protection will remain a key issue in the food and beverage sector. Following this decision:

• Brands should be proactive in trade mark strategy. Beyond registering logos and product names, companies should consider how to protect broader aspects of their brand identity, including packaging design and key visual elements.
• Retailers may need to rethink own-brand packaging. While cost effective alternatives are here to stay, this case suggests that supermarkets should be cautious about overly familiar designs that evoke established brands too closely.
• Product differentiation is more important than ever. Competing on price and quality alone may not be enough – brands should aim for clear visual and conceptual distinctiveness to stand out in the marketplace.

The decision is a clear win for Thatchers, but it also has implications for the wider food and drink industry. As legal frameworks continue to evolve, protecting brand identity will remain a crucial factor in sustaining consumer trust and market leadership.

For any questions relating to the above, please contact the author, Tanya Waller at [email protected].

This article was written by Trade Mark Director Tanya Waller