
I don’t usually blog about in-depth trade mark issues because I am not a Chartered Trade Mark attorney, and I use a trusted partner to help me to provide high quality trade mark services, so I don’t often feel qualified to comment on trade mark issues. However, it is inevitably high profile trade mark court proceedings that make the main stream press because we, as consumers, can often understand, and feel interested in, the “lookalike” battles between the high street giants, so I feel qualified, purely as an interested consumer and observer, to report on the latest news in the battle of the lookalike products.
Colin vs Cuthbert
For me, it all really started to hit the main stream consciousness when the Colin vs Cuthbert battle erupted between Marks & Spencer and Aldi. This court case really captured the public interest, I think, because we could, at least at a high level, understand the issues and apply them to products we knew and loved. In a nutshell, M&S claimed that Aldi’s (somewhat cheaper) Cuthbert Caterpillar cake was infringing its registered trade mark rights and “passing off” Cuthbert as Colin, this depriving M&S of revenue.

It seemed, for a while, that the nation got involved in this debate but, in the end, the two parties settled out of court, and it is unclear whether either of them actually “won” the argument. It seems unlikely.
Gin-uine Article?

Then, M&S, once again, took issue with Aldi over a gin liqueur including gold flakes and presented in a light-up bottle, this time citing registered design infringement. And this time, M&S won.
In the latest of these “lookalike” product wars, Thatchers issued court proceedings against Aldi in relation to their Taurus lemon cider cans and packaging. In this case, although the court decided that there was no likelihood of confusion, as such, because ‘Taurus’ and ‘Thatchers’, as they appear on the cans, were only similar to a low degree, the Court of Appeal held that Thatchers could take advantage of the Enhanced Protection for Reputable Marks and that, in relation to this provision, Aldi were attenmpting to ‘ride on the coattails’ of the Thatcher’s trade mark by reminding customers of that trade mark, and so taking unfair advantage of Thatchers’ reputation in the mark. For these reasons, Aldi were found to infringe Thatchers’ registered trade mark rights.
Product Developer IP Rights vs Consumer Choice
These high profile cases certainly demonstrate the power of registered intellectual property rights, and how they can be used to protect their owners’ market shares. As a consumer, of course, I might argue that these cases demonstrate how the higher-priced product owners can corner the market for certain products and stop the budget brands from offering cheaper versions to the masses. And I guess there is an element of truth in that. However, the products in question are all luxury items, not staple food products, and the original developers have spent time and money developing, promoting and building a reputation in them. Surely, they are entitled to capitalise on that investment?
As an IP attorney that works with innovative individuals and companies, I see, first hand, the time, money and resources it takes to get a new product developed and onto the shelves, and if others can just come along and copy these innovations, without having to expend the same degree of resource (so they can undercut the innovators on price), then why would anyone bother innovating? There has to be some return on that investment, otherwise what would be the point? And that is the whole point of intellectual property legislation in a nutshell – to reward innovators.
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