Trademark Infringement and Lookalike Products!

Can lookalike products be considered to take unfair advantage of a branded product?

Recently the Court of Appeal has considered whether products in packaging that look like branded products can be deemed to take unfair advantage of that brand.

In the case of Thatchers Cider Company Limited v Aldi Stores Limited [2025], the Court of Appeal held that Aldi had taken unfair advantage of Thatcher’s trade-mark products by packaging their cloudy lemon cider in a very similar way to Thatchers.

Thatchers initially tried to make a claim that Aldi was causing consumer confusion and that they had taken unfair advantage of their trademark. This was dismissed by the Intellectual Property Enterprise Court, and Thatchers chose to appeal only the claim in relation to unfair advantage which was ultimately successful at the Court of Appeal.

So, what is meant by unfair advantage?

Under section 10(3) of the Trade Marks Act 1994, the following nine requirements must be satisfied:

1. The trademark must have a reputation in the UK
2. There must be use of a sign by a third party within the UK
3. The use must be in the course of a trade
4. The use must be without the consent of the owner of the trademark
5. The use must be of a sign that is identical or similar to the trademark
6. The use must be in relation to goods or services
7. It must give rise to a link between the sign and the registered trademark in the mind of the average customer
8. The use must give rise to one of three types of injury
9. The use must be without due cause

The leading case of L’Oreal SA and others v Belure NV and others also established that the defendant must have an intention to deceive the customer.

The Court of Appeal ultimately held that as Aldi had defaulted from their usual packaging, although they had not tried to deceive the average customer as to the origin of the product, they had tried to remind them of Thatchers’ product which ultimately led to them to purchase the cider. It was therefore held that they had taken advantage of Thatchers’ reputation as a means to boost the sales of their product. The Court of Appeal therefore approved Thatchers’ claim.

What is the significance of the Court’s decision for trademark infringement cases moving forward?

This is significant and it shows a brand owner can bring a successful unfair advantage claim where it has registered well-known packaging as a trademark and a third party sells products in similar lookalike packaging as a means to boost sales.

If you require legal assistance regarding trade mark infringement, and/or you would like additional advice regarding the impacts of the recent Court of Appeal decision, please do not hesitate to contact our Commercial Solicitors on 01604 344512 / 01908 044759 or email [email protected].