Can lookalike products be considered to take unfair advantage of a branded product?

Recently the Court of Appeal has considered whether products in packaging that look like branded products can be deemed to take unfair advantage of that brand.

In the case of Thatchers Cider Company Limited v Aldi Stores Limited [2025], the Court of Appeal held that Aldi had taken unfair advantage of Thatcher’s trade-mark products by packaging their cloudy lemon cider in a very similar way to Thatchers.

Thatchers initially tried to make a claim that Aldi was causing consumer confusion and that they had taken unfair advantage of their trademark. This was dismissed by the Intellectual Property Enterprise Court, and Thatchers chose to appeal only the claim in relation to unfair advantage which was ultimately successful at the Court of Appeal.

So, what is meant by unfair advantage?

Under section 10(3) of the Trade Marks Act 1994, the following nine requirements must be satisfied:

(1) The trademark must have a reputation in the UK
(2) There must be use of a sign by a third party within the UK
(3) The use must be in the course of a trade
(4) The use must be without the consent of the owner of the trademark
(5) The use must be of a sign that is identical or similar to the trademark
(6) The use must be in relation to goods or services
(7) It must give rise to a link between the sign and the registered trademark in the mind of the average customer
(8) The use must give rise to one of three types of injury; and
(9) The use must be without due cause.

The leading case of L’Oreal SA and others v Belure NV and others also established that the defendant must have an intention to deceive the customer.

The Court of Appeal ultimately held that as Aldi had defaulted from their usual packaging, although they had not tried to deceive the average customer as to the origin of the product, they had tried to remind them of Thatchers’ product which ultimately led to them to purchase the cider. It was therefore held that they had taken advantage of Thatchers’ reputation as a means to boost the sales of their product. The Court of Appeal therefore approved Thatchers’ claim.

What is the significance of the Court’s decision for trademark infringement cases moving forward?

This is significant and it shows a brand owner can bring a successful unfair advantage claim where it has registered well-known packaging as a trademark and a third party sell’s products in similar lookalike packaging as a means to boost sales.

If you require legal assistance regarding trade mark infringement, and/or you would like additional advice regarding the impacts of the recent Court of Appeal decision, please do not hesitate to contact our Commercial Solicitors on 01604 344512 / 01908 044759 or email info@franklins-sols.co.uk

L V Bespoke, a family-run business based in Norfolk, recently won a trademark dispute against the fashion giant, Louis Vuitton, after a two-year legal battle.

Back in 2020 when lockdown hit the country, Mr and Mrs Osborne founded L V Bespoke. They had a  view to create steel plant supports and other home and garden products.

They decided to register L V Bespoke as a trademark as their business looked like it was taking off. Unfortunately, they received a letter from the Louis Vuitton legal team.

The fashion label argued that by registering the trademark “L V Bespoke”, there would be confusion in the eyes of consumers. Such confusion could also work for the benefit of the couple. According to them, the use of L V Bespoke would “take unfair advantage of, or would be detrimental to” Louis Vuitton’s earlier trademarks. 

Mr and Mrs Osborne decided to fight the objection. They argued that their metalwork products are clearly different than the metalwork found in Louis Vuitton’s handbags. The couple thought it was “surreal” to compare both metalwork and imagine that there could be any sort of confusion. This is what the judge, Matthew Williams, ruled in favour of.  According to him, “almost all of L V Bespoke’s goods were self-evidently dissimilar” to Louis Vuitton’s products. He added that “the only point of commonality is the presence of the same two single letters “L and V”.

Mr and Mrs Osborne spent almost over £15,000.00 in legal proceedings and lost two years of potential business growth. The judge however ruled in their favour and ordered Louis Vuitton to pay their costs and £4,000 in damages.

Intellectual Property Law can be delicate and a source of great stress when entering into a dispute. Whether in relation to trademark, copyright, patent, or passing off, the rules around Intellectual Property Rights can be difficult to navigate. Our commercial team has a wide range of experience when it comes to Intellectual Property and infringement of IP Rights and would be happy to assist both individuals and businesses with any issues relating to Intellectual Property.

For further advice and assistance please contact our Commercial Solicitors on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk