UK Judge to put rival ciders to the taste test

UK Law Society Gazette


A judge is to conduct a blind taste test between two ciders as she judges a ‘knock-off’ trade mark dispute between Aldi and Thatchers, the High Court heard today.

Her Honour Judge Melissa Clarke will decide whether there is a similarity between Thatchers cloudy lemon cider and Aldi’s Taurus brand, which has been accused of ‘riding on the coat tails’ of the Somerset brewer.

Thatchers is suing Aldi for infringement and passing off over its launch of the Taurus drinks in May last year.

Martin Howe KC, for Thatchers, told a hearing at the Rolls Building that Aldi had an ‘unfair advantage’ after launching its Taurus product due to the similarity its packaging had with the Thatchers product. ‘This has given Aldi an advantage’, Howe said. ‘They do not seem to have promoted this product but have achieved very large sales from a standing start and that was, in essence, their plan all along, which was to use the similarity between the appearance of the products.

‘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 asked the judge to carry out a blind taste test to see if the products tasted different, informing the court that he, his junior and a pupil had all carried out a similar test using two cups marked ‘A’ and ‘B’.

He explained: ‘The do taste materially different, at least to a substantial number of people, and that will skew the public appreciation of the product and therefore damage the trademark.’

Clarke agreed to carry out a taste-test but said she would have the ciders shipped to Oxford where she would try them in private. ‘I have a no-alcohol while sitting rule’, the judge quipped.

When Howe pointed out that the cider was not that strong, containing about 4% alcohol, the judge replied that was ‘strong enough’.

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