Aldi’s appeal against a decision that it had infringed on Marks and Spencer’s registered design of its light-up gin was dismissed earlier today.
Marks and Spencer launched its intellectual property lawsuit against discount supermarket rival Aldi back in 2021 over a gin range.
The British chain brought out a new line of gin-based liqueurs for Christmas in 2020 that had gold flakes and an LED light in the base of the bottle which illuminated the bottle.
A year later, Aldi started selling gin liqueurs containing gold flakes in a light-up bottle.
The High Court heard the ‘look-alike’ arguments and ruled that Aldi’s designs did not produce a different overall impression from the Marks and Spencer design. The court found last February that Aldi’s designs infringed the registered designs.
Aldi tried to appeal the decision and its appeal was heard before Lord Justice Lewison, Lord Justice Moylan and Lord Justice Arnold last month.
However, in a ruling handed down today (Tuesday), the three judges from the Court of Appeal dismissed its appeal.
Aldi had Serle Court Michael Edenborough KC and Thomas Elias, instructed by Freeths while Marks and Spencer had Three New Square Douglas Campbell KC and Daniel Selmi, instructed by Stobbs (IP).
This is not the first product the shopping chains have battled over. Back in February 2022, Marks and Spencer settled a long-running dispute with Aldi over its iconic Colin the Caterpillar cake.
The deal resulted in Aldi alternating the appearance of Cuthbert the Caterpillar, its lookalike version.
While Aldi is no stranger to a trademark battle, it did win its case against Thatchers last month after the court ruled that it did not infringe a trademark with its cider lemon drink.
Aldi and Marks and Spencer have been contacted for comment.
Commenting on the judgment, Louise Popple, senior counsel at Taylor Wessing said: “The decision is a significant victory for M&S, not just against Aldi (against whom M&S battled in the Colin the Caterpillar dispute) but all who produce look-alike products.”
She continued: “There has been a significant uptick in the number of look-alike cases, specially involving supermarkets, going to court, which perhaps shows brand owners’ increasing confidence in these actions.”
“Low cost and supermarket own brands will no doubt continue to fly close to the wind, especially where there is a significant financial incentive for doing so, but it is a high-cost strategy when they over-step the mark,” Popple added.
While Alex Borthwick, counsel at Powell Gilbert highlighted that this “decision is significant in that it confirms that a design owner may market its design (and similar designs) for a year to assess whether the design is a commercial success before incurring the costs of design registration, without jeopardising its position in a later infringement dispute.”
“Prior to the case, this had not been clear and is a welcome clarification for design owners,” he added.