Thatchers has lost a legal battle against Aldi over its own version of lemon cider after a judge took a blind taste test.
Within the beverage industry, a brewing legal battle erupted between Thatchers, a prominent cider company, and the retail giant Aldi. Thatchers accused Aldi’s Taurus cider of not just resembling but also tasting akin to its Cloudy Lemon Cider. This dispute transcends typical trademark conflicts, diving into the realm of taste in legal discourse. A “blind taste test” was used during the trial, this case brings a unique angle to the legal arena dealing with product resemblances.
Thatchers, asserted that Aldi’s Taurus cider mirrors not only the visual aspects of its Cloudy Lemon Cider but also replicated its flavour. To bolster their claim, Thatchers proposed a “blind taste test,” a bold move intended to nullify any preconceptions influenced by verbal descriptions. Thatchers were of the view that such a test could impartially evaluate the likeness between the two beverages.
Aldi’s defended by emphasising differences in brand names, logos, and lemon representations between the products. They said that distinct brand elements, including the arrangement of ‘cloudy,’ ‘lemon,’ and ‘cider,’ differentiate Aldi’s Taurus from Thatchers’ Cloudy Lemon Cider. Aldi expressed confidence that these distinctions were significant enough to refute any allegations of trademark infringement.
It is Thatchers case that Aldi have created a cheaper version of their drink to gain an “unfair advantage” and are in fact “riding on the coattails” of their reputation. While the supermarket accepted it had used the family-run cider brand’s drink as a “benchmark” for its own, it denied infringement or that it was “passing off” the drink as a copycat.
Trademark Infringement and Implications:
Trademark infringement emerges when a trademark’s usage causes confusion among consumers regarding the goods or services’ origin. Thatchers’ argument hinged on the notion that Aldi’s Taurus cider not only resembled and tasted remarkably similar to its own product, leading to market confusion.
Can Product Taste Amount to Trademark Infringement?
Although theoretically plausible to register a trademark for taste or flavour, practical implementation has proven challenging. Flavours, unlike visual symbols or sounds, haven’t traditionally been recognised as distinctive product identifiers eligible for trademark protection. A product’s taste is considered an inherent and fundamental functional aspect, integral to its nature rather than an exclusive identifier. Courts have been hesitant to grant trademark protection to tastes due to their subjective, variable, and difficult-to-define nature.
Judge Melissa Clarke was invited to take a “taste test” of the rival drinks. Within her judgement she was “no expert and have never tasted cloudy lemon cider before”, but that the drinks tasted “very similar” but discernibly different. She said she was “satisfied on the balance of probabilities” that seeing the Aldi product “would call to mind” the Thatchers trademark, causing “a link in the mind of the average consumer”. She judges that Aldi had not infringed and was therefore not liable for “passing off”, adding that Aldi’s product did not take unfair advantage of nor was “detrimental” to the reputation of the Thatchers trademark.
Judge Clarke found that Aldi did not develop its product “with an intention to take advantage of the goodwill and reputation” of the Thatchers trademark, adding that she was satisfied “there is no misrepresentation”.