1 February 2023TrademarksMuireann Bolger

M&S toasts gin-infused victory against Aldi

UK retailer targets Aldi again following the high-profile ‘Colin’ cake dispute | German discounter’s arguments over key branding differences fails to convince UK court.

Marks & Spencer (M&S) has prevailed against Aldi in its latest infringement lawsuit against the German discounter, which this time concerned the copying of festive ‘Light Up Gin Bottles’.

The win follows the UK retailer's high-profile feud with Aldi last year over its ‘Cuthbert’ caterpillar-shaped cake.

Justice Richard Hacon handed down the judgment yesterday, January 31, at the Intellectual Property Enterprise Court.

Different scenes, same effect

M&S sued Aldi after it released a brand of gin liqueurs with gold flakes, titled Gin ‘Infusionist’ in November 2021, claiming that the launch infringed its own registered designs for a range of Christmas-themed gin unveiled back in autumn 2020.

The ruling could mean that Aldi owes M&S profits from the sales of the infringing product alongside damages.

The court found that Aldi’s gin was identical to the M&S product, with regard to the botanical shape of the bottles, the winter scenes depicted on them, and the shape of the stoppers.

Aldi had countered that their products had different branding, with a different name, and that the scene on the bottles was ‘brighter and busier featuring trees instead of a stag or a doe. It also contended that the stoppers on its Infusionist gin bottles were darker in shade.

First impressions

In summation, Justice Hacon held that the key question was whether the M&S registered designs (RDs) and Aldi’s bottles produced a different overall impression for consumers.

He held that they did not, given the similarities they had in common.

“The differences to which Aldi points are there, but these differences are of relatively minor detail which do not affect the lack of difference in the overall impression produced by the Aldi bottles on one hand and each of RDs in suit on the other,” he said.

In a statement sent to WIPR, Marks & Spencer welcomed the decision. “We are pleased with the judgement, which demonstrates the importance of protecting our innovation,” said a spokesperson.

“For over 138 years customers have turned to M&S for unique, original, quality products:conceived, created and developed by us working with our trusted suppliers and produced to the highest standards.

“Like many other UK businesses, large and small, we know the true value and cost of innovation and the enormous time, passion, creativity, energy and attention to detail, that goes into designing, developing and bringing a product to market. Our customers have confidence in our products because they trust our quality and sourcing standards so we will always seek to protect our reputation for quality, innovation and value.”

In response to a request from WIPR, an Aldi spokesperson said: “We are disappointed with this judgement and will be appealing the decision. Aldi is committed to offering customers the highest quality products, at the lowest possible prices.”

M&S was represented by Stobbs IP, while Aldi was defended by Freeths.

Commenting on the judgment on the social media platform, LinkedIn, Stobbs’ head of litigation, Geoff Steward, said: “Social media your way out of this one Aldi! Aldi lookalike found to have infringed M&S’s registered design. Calling their rip-off ‘Infusionist’ didn’t help Aldi. Well done M&S for holding Aldi’s feet to the fire.”

Also commenting, Mark Caddle, partner and trademark attorney at  Withers & Rogers, said: “This is another case of a budget brand pushing the limits of IP between its product and one from another retailer. The High Court has ruled that Aldi has flown too close to the sun and infringed on the design of M&S’ well-loved Light-up Christmas Gin, resulting in potential damages to be paid to M&S.

“With the memory of the battle of Colin and Cuthbert the caterpillar cakes still fresh, this outcome should send warning signs to budget brands that a line in the sand is forming, and court cases for infringement could become more common. It is important for all brands to be aware of what is an acceptable similarity and what could bring the risk of legal action to the company.”

Back in February 2022, the parties settled their dispute centring on the alleged “copycat” caterpillar cake.

The UK store sued Aldi in April 2021 claiming that its ‘Cuthbert’ caterpillar cake infringed its own ‘Colin the Caterpillar’ brand. M&S said that Aldi’s cake was likely to confuse customers and “rides on the coat-tails” of the established ‘Colin’ product.

Following the complaint and the accompanying high-profile publicity, Aldi withdrew the ‘Cuthbert’ cake from its store shelves, but the supermarket followed the settlement with an announcement on social media that Cuthbert would be “getting out early on good behaviour” in spring.

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More on this story

2 February 2022   Marks & Spencer and Aldi have settled a high profile lawsuit centring on the German supermarket’s alleged “copycat” caterpillar cake.
26 April 2021   Last week, news headlines led with a story that UK supermarket chain Marks & Spencer was suing Europe's largest supermarket chain, Aldi, over a cake that it claimed infringes M&S’ ‘Colin the Caterpillar’ product.