Background Back in January 2025, after nearly 3 years of legal proceedings, the Court of Appeal handed down its landmark ruling in the Thatchers v Aldi ‘Cloudy Lemon’ dispute, with the decision having major ramifications for those who choose to use ‘copycat’ packaging to freeride on the market leader’s reputation when selling their own rival product.
The decision was discussed in depth in our earlier article (see here). As a quick reminder, Thatchers brought a claim of trade mark infringement and ‘passing off’ in relation to Aldi’s ‘Taurus Cloudy Cider Lemon’. The packaging for this product had striking similarities to Thatcher’s product design and, indeed, their registered trade mark for their label mock-up. The Court of Appeal ultimately ruled that the Aldi product design took unfair advantage of Thatchers’ trade mark reputation, achieving huge sales in a short space of time by riding on the coattails of Thatchers’ success.
On the back of the decision, Aldi sought permission to appeal in March 2025.
Aldi’s appeal request
Aldi’s permission to appeal centred on the following claims:
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The Court of Appeal erred by allowing Thatchers' appeal pursuant to section 10(3) of the Trade Marks Act 1994 and that it had effectively created a new ‘wrong’ of mere copying.
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The Court of Appeal had erred in its assessment of Section 11(2) of the Trade Marks Act 1994 (providing a ‘defence’ to infringement where it can be shown that the mark/sign used was in fact descriptive and/or non-distinctive).
Nonetheless, Aldi’s permission to appeal was refused on 12 June 2025. Whilst no detailed reasoning was provided (the Supreme Court are not obliged to provide their reasoning), the Supreme Court must have concluded that the Court of Appeal reasoning was legally sound. Consequently, Aldi have reached the end of the line, and the Court of Appeal ruling is final.
Secerna comment
The Supreme Court’s refusal to allow Aldi to appeal definitively brings the matter to a close. As discussed in our previous article, the ruling ought to compel retailers to think twice before using ‘dupe’ packaging design for their ‘like’ products.
Of course, there is a balance to be struck between fair and unfair competition. Retailers are well within their rights to launch ‘like’ products that offer a cheaper alternative to the brand leader – this is well within the bounds of a healthy competitive marketplace. However, retailers often launch these ‘like’ products using ‘dupe’ packaging to create a link to the brand leader’s product in the mind of consumers, subsequently freeriding on the brand leader’s reputation and unfairly drawing away brand loyal customers.
In the Thatchers case, the fact that they had registered trade mark protection for their label mock-up proved to be pivotal (this is a step often not taken by many brand owners). Without a trade mark registration for the label mock-up, Thatchers would have found it very difficult to mount a successful trade mark infringement or passing off claim. Where there are gaps in registered protection of the brand leader, there will no doubt still be opportunistic retailers who will seek to exploit them when creating ‘like’ products.
Brand leaders should therefore seek to register their trade marks and the packaging design where possible, giving them the strongest set of tools to safeguard against opportunistic competitors.
If you would like more information about trade mark protection and safeguarding against dupes, please get in touch with our attorneys.