In a judgment handed down yesterday, the Court of Appeal (CoA) found that Thatchers' "cloudy lemon cider" trade mark had been infringed by a 'lookalike' product launched by a UK supermarket. The decision is significant for brand owners, as well as businesses trading in lookalikes.

The decision covered a number of grounds, including: 

1. Similarity of Marks: the CoA said that the judge at first instance had understated the similarity between Thatchers' mark and the supermarket lookalike. In particular, the fact that the trade mark was two-dimensional and the product three-dimensional should not have been considered, as the mark should have been considered on the basis of its notional fair use; 
2. Intention and Unfair Advantage: the CoA said that the judge at first instance had wrongly conflated intention to deceive and intention to take advantage of a trade mark's reputation. The similarity of the infringing product to Thatchers' mark revealed the supermarket's aim to "remind consumers" of Thatchers and offer a product that was "like the Thatchers Product, only cheaper". While such marketing did not amount to deception, it did reveal an intention to take unfair advantage of (or "ride on the coat tails" of) Thatchers' reputation;
3. Sales Figures: the CoA agreed with Thatchers that the supermarket lookalike had sold a significant volume of its product without any promotion, which further indicated the commercial 'unfair' advantage they had achieved. Evidence that they would have achieved these sales regardless of the packaging was lacking, and may have proven very helpful; 
4. Honest Practices: given the supermarket's knowledge of Thatchers' reputation, its chosen packaging was inconsistent with honest practices and amounted to unfair competition; and
5. Damage to reputation: the CoA did not agree entirely with Thatchers, ruling that the first instance judge was correct in finding that use of the lookalike product was not detrimental to the reputation of Thatchers' trade mark. 

Looking to the future…

This decision offers helpful clarification around the concept of unfair advantage in infringement proceedings. Unless an appeal to the Supreme Court is forthcoming, this decision is likely to be very useful to brand owners in the future in taking on competitors who launch lookalike products.

The decision also highlights the utility and importance of strategic trade mark protection. Registering parts of the packaging can prove very useful in tackling lookalikes. 

The supermarket has indicated its intention to challenge the Court of Appeal decision, so this case is certainly one to watch.