November 24, 2023

Judge to Taste Test Competing Ciders

This post was written by: Michael Sayers

The High Court heard arguments today on a “knock-off” trade mark dispute between Thatchers and Aldi, during which a judge will blind taste test two different ciders.  

Her Honour Judge Melissa Clarke will determine  whether Aldi’s Taurus brand—which has been accused of “riding on the coat tails” of the Somerset brewer— is being “passed off” as  Thatcher’s hazy lemon cider. . With the debut of the Taurus drinks in May of last year, Thatchers is suing Aldi for passing off and infringing on intellectual property.

Thatchers’ Martin Howe KC stated at a hearing at the Rolls Building that Aldi’s launch of its Taurus product gave it a “unfair advantage” because of the product’s packaging’s resemblance to Thatchers’. According to Howe, “this has given Aldi an advantage.” He has argued that despite appearing to have done little to promote the product, Aldi  have made significant sales which, he has stated, was essentially their entire strategy from day one.  The resemblance in the products’ looks here is paramount and he argues can easily be misleading.

‘There is a real risk that some consumers, bearing in mind the very rapid nature of the transaction, plonking it in their trolley thinking it is the Thatchers product.’

Howe informed the court that he, his junior, and a student had all conducted a comparable test using two cups marked “A” and “B,” and he asked the judge to conduct a blind tasting test to see if the items tasted different. According to him, “the do taste materially different, at least to a substantial number of people,” which will distort consumers’ perceptions of the product and harm the brand.

Although Her Honour Judge Melissa Clarke  would have the ciders delivered to Oxford where she would taste them privately, Clarke agreed to conduct a taste test. The judge joked, “I have a no-alcohol while sitting rule.”  

The court heard that Aldi refuted the allegations and any desire to mislead customers or “ride on the coattails” of Thatcher’s registered trademark.

The trial continues and is still ongoing.

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