Thatchers Cider Company Limited v Aldi Stores Limited

This was a dispute about packaging, shelf recognition and own-brand competition. Thatchers launched Cloudy Lemon Cider in 2020 and registered a UK device trade mark covering the product’s visual presentation. Aldi later launched Taurus Cloudy Lemon Cider in the same broad market, using packaging that Thatchers said went too far.

The commercial setting was familiar. A supermarket wanted to sell a lower-cost alternative in a category where shoppers make quick decisions. The court noted that consumers may only look at products such as cider for a few seconds before deciding whether to buy. That made the visual design of the pack central to the case.

Thatchers had invested heavily in promoting its product and had built substantial sales. Aldi was known for own-brand products and low prices, and for the slogan "like brands, only cheaper". The court did not treat that slogan as the legal test, but it formed part of the wider commercial background.

The key factual point was benchmarking. Aldi often identifies a market-leading product as a benchmark when developing a similar Aldi product. In this case, the Court of Appeal found that Thatchers was used as the benchmark not only for the drink itself but also for the packaging design.

The case was not about whether lemon cider packaging can use yellow colouring, lemon imagery or flavour wording. The court accepted that businesses need to communicate flavour and product type. Thatchers itself had put lemons prominently on its packaging to show clearly what the product was.

The real question was whether Aldi had gone beyond ordinary category signalling and created a sign that too closely resembled Thatchers’ registered design. That is an important distinction for businesses. Common product cues may be legitimate, but the overall combination and presentation can still create legal risk.

The documentary evidence mattered a great deal. The court referred to project reports from Aldi’s design agency, Black Eye, where the only illustrated product in the market review was the Thatchers product. It also referred to an email asking to see a hybrid of Taurus and Thatchers and to add lemons as Thatchers had done.

That kind of evidence can be more damaging than a business expects. A court does not have to infer intention only from the finished pack on the shelf. It can look at the route taken to get there. If the route shows deliberate borrowing from a rival’s protected look, that can strongly support an infringement claim.

The court also compared the Aldi pack with Aldi’s existing Taurus house style. That comparison mattered because a business can often justify a new variant by showing it still follows its own established brand system. If the new design departs from that system in ways that move it closer to a rival, the court may treat that as significant.

The appeal turned on section 10(3) of the Trade Marks Act 1994. This part of trade mark law protects marks with a reputation against certain kinds of unfair use. The Court of Appeal had to decide whether Aldi had used a sign similar to Thatchers’ registered mark, whether Thatchers’ mark had a reputation in the UK, and whether Aldi’s use without due cause took unfair advantage of that reputation.

This was not a classic confusion appeal. Thatchers did not challenge the first-instance decisions on section 10(2) or passing off. So the Court of Appeal was not deciding whether shoppers thought Aldi’s product actually came from Thatchers. Instead, it was deciding whether Aldi’s packaging benefited from the pull, image or recognition of the Thatchers mark.

The court also considered Aldi’s attempt to rely on the descriptive-use defence in section 11(2)(b). Aldi argued in substance that the shared features were descriptive or non-distinctive. The Court of Appeal rejected that argument on these facts and looked at Aldi’s sign as a whole rather than excusing individual elements one by one.

For business owners, that is a practical point. It is rarely enough to say that each separate feature is common or descriptive. Courts often assess the finished packaging as a composite sign and ask what commercial message it sends to shoppers.

The Court of Appeal allowed Thatchers’ appeal and substituted a finding that Aldi had infringed Thatchers’ registered trade mark under section 10(3). The court held that Aldi intended its sign to remind consumers of the Thatchers mark and to convey that the Aldi product was like the Thatchers product, only cheaper.

The court said the resemblance was not coincidental. It relied on three main points. First, Aldi had significantly departed from its usual Taurus house style. The court highlighted that the usual Taurus style used white wording on a black background, whereas the Aldi lemon cider used black wording on a pale yellow background. The usual house style did not include fruit images, but the Aldi pack used prominent lemons and leaves. The yellow background and lemons also made the usual Taurus swooshes less prominent.

Secondly, the court treated the imitation of faint horizontal lines as important evidence of copying. Even if shoppers would not consciously notice those lines, the court said reproduction of inessential details can reveal imitation. That was relevant to intention, even if not decisive on confusion.

Thirdly, the documentary design record supported the conclusion that Thatchers was the reference point throughout the process. The court relied on the market review materials and the email asking for a hybrid of Taurus and Thatchers.

From those points, the court drew what it called the inescapable conclusion that Aldi intended the sign to remind consumers of the Thatchers mark. The court said this could only have been in order to convey the message that the Aldi product was like the Thatchers product, only cheaper. That was enough to show an intention to take advantage of the reputation of the Thatchers mark in order to help sell Aldi’s product.

The court also rejected Aldi’s descriptive-use defence. It concluded that Aldi’s use was not in accordance with honest practices in industrial or commercial matters because it amounted to unfair competition. The court declined Aldi’s invitation to depart from the existing L'Oréal v Bellure approach to unfair advantage.

This decision matters most for businesses selling fast-moving consumer goods, especially where products compete on a shelf or in a small online image. It does not stop businesses from launching competing products or using ordinary flavour and category cues. It does, however, show the risk of designing a pack to trigger recognition of a rival product and to borrow that rival’s reputation.

If your business sells own-brand or private-label products, the case is a warning against treating a competitor’s protected look as the design target. A different name, logo or price point may not be enough if the overall visual message is still, in effect, "ours is like theirs, only cheaper".

The judgment is also a reminder that internal conduct matters. Product development records can become evidence. A casual email asking for a design to look more like a competitor may later be read as proof of deliberate imitation. That is especially risky where the competitor has a registered device mark and a strong reputation.

Another practical lesson is to respect your own house style. If your brand usually follows a recognisable format, a sudden move towards a competitor’s look can be hard to defend. A safer approach is to make sure new variants still look clearly rooted in your own brand system, even when they need to communicate a new flavour or product type.

One of the strongest business lessons from this case is evidential. Courts can use ordinary commercial documents to work out whether similarity was deliberate. That means legal risk can be created not only by the final packaging, but also by the way the project is managed from the start.

In this case, the court relied on project reports, the use of Thatchers as the benchmark, and an email asking for a hybrid of Taurus and Thatchers. Those materials helped the court conclude that the resemblance was intentional rather than accidental.

For a business owner, that means packaging disputes are not just design disputes. They are also document disputes. If your records show that the team wanted to get close to a rival’s look, that can be difficult to explain away later.

It is sensible to keep a clean decision trail. If you choose a colour because it communicates flavour, record that. If you use fruit imagery because the product contains or tastes of that fruit, record that. If you depart from your usual house style, make sure there is a genuine brand reason that does not depend on echoing a competitor.

If you are launching a product in a crowded category, build packaging review into the process early. Do not leave it until artwork is nearly final. The closer the category is to own-brand competition, the more important this becomes.

Start with clearance. Check whether competitors hold registered trade marks covering logos, artwork or packaging design, not only product names. Then review the proposed pack as a whole and ask whether it still looks like your brand.

Next, review the project paperwork. If the design agency has been told to make the product look more like a rival, stop and reassess. Market awareness is normal. Deliberate visual borrowing is the problem. Rewrite briefs so they focus on your own brand objectives and product characteristics.

Finally, sense-check the commercial message. If the pack is likely to say to shoppers "this is basically that famous product, but cheaper", you may be in dangerous territory even if nobody would be confused about who made it.

The Court of Appeal judgment was handed down on 20 January 2025. The appeal came from the Intellectual Property Enterprise Court, where Thatchers had lost at first instance in January 2024. The Court of Appeal allowed the appeal on the section 10(3) claim and substituted a finding of infringement.

The decision is most useful as guidance on lookalike packaging, reputation-based infringement and the importance of internal design evidence. It should not be read as a general rule that all similar packaging is unlawful, or as a complete summary of UK trade mark law.