We have previously written on the High Court (IPEC) and Court of Appeal judgments (here and here) in the long-running case between Thatchers and Aldi. The Supreme Court has now refused permission for Aldi to appeal the Court of Appeal judgment, which brings to an end a case that has kept brands and discounter retailers gripped for the last 2+ years, and which has led to extensive legal and industry commentary.
Basis of appeal
As a brief reminder of the claim, Thatchers issued a claim against Aldi in 2022 alleging trade mark infringement and passing off in relation to Thatchers' device mark for its Cloudy Lemon Cider. Aldi had launched its own label 'Cloudy Cider Lemon' under its house brand, Taurus. Thatchers were unsuccessful in the IPEC trial in January 2024. This was overturned on appeal in January 2025, with Arnold LJ providing the leading, meticulous judgment.
Aldi then sought permission to appeal to the Supreme Court in March 2025. Its appeal application hinged on whether the Court of Appeal erred by allowing Thatchers' appeal pursuant to section 10(3) of the Trade Marks Act 1994. A key tenet of Thatchers' success was that the Court of Appeal reassessed the Judge's analysis of Aldi's intention and whether an unfair advantage had been taken. Arnold LJ found that the case sits squarely within the description of "a transfer of the image of the mark" and that Aldi was "riding on the coattails" of Thatchers' successful cloudy lemon cider. In particular, Aldi sought to persuade the Supreme Court that the Court of Appeal erred by (a) creating a new wrong of mere copying and (b) erroneously interpreting section 11(2)(b) of the Act.
The Supreme Court rejected Aldi's appeal and the Court of Appeal judgment stands, Lord Justice Briggs, Richard and Burrows making the decision. They do not need to provide a detailed written explanation for why they rejected Aldi's appeal, so we cannot comment on their exact reasoning. Ultimately, they must have considered that Arnold LJ's interpretation of the evidence and assessment of section 10(3) was correct, and that Aldi had taken unfair advantage.
Commentary
Certain parts of the legal industry have breathed a collective sigh of relief. Whilst we all would have liked a definitive ruling and clarity from the highest court of the land, in our view this outcome is the correct one.
There may be argument that the Court of Appeal judgment has swung too much in favour of rightsholders and stifles fair competition. But, the previous analysis of section 10(3) in the UK and lack of an unfair competition limb that is relied upon in the continent, has meant that the likes of Aldi and other discount retailers have, for many years, taken advantage of the development, investment and reputation of key brands. It has taken until now for a brand to have all the components in a claim to cease the lookalike activity, including the right registration, strong legal advice and the means (both financial and time) to pursue the claim.
Brands now have a decisive authority to call upon in the pursuit of brand protection and we eagerly wait to see how the courts consider future copycat cases.
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