Earlier this year, we talked about a fairly silly trademark dispute in the UK between beverage company Thatchers and German grocer Aldi. At issue was competing lemon cider products offered by both companies. Thatchers makes a product named its “Cloud Lemon Cider”, while Aldi sells its “Taurus Cloud Cider.” Thatchers complained that the products were too similarly named and that the trade dress for both products used similar color schemes.
There were several issues with those claims. First, the names. Thatchers claimed that “Thatchers” and “Taurus” were too similar to one another. Which… I mean… no, they aren’t? And the remainder of the product names are almost entirely descriptive of the product itself. “Cloudy Cider” is not really any more deserving of a trademark than “hazy IPA,” as I stated in my previous post on this. As for the color scheme on the packaging, both used the colors yellow and green. Yes, they’re similar. They’re similar because lemons. I can think of roughly a zillion lemon-flavored products that also use that same color scheme.
As a result of those problems, the court ruled against Thatchers and dismissed the case earlier this year. But apparently the lesson didn’t fully land with Thatchers, which has appealed that ruling and will be going before the Court of Appeal. And based on the strictures for how the Court of Appeal can review the previous ruling, it is unlikely that this is going to go well for Thatchers.
The parties are back in court at the Court of Appeal on Tuesday and Wednesday as the cider company seeks to overturn this decision.
Commenting on this appeal, Mary Bagnall, head of intellectual property at Charles Russell Speechlys explained that “appeals in cases such as these are particularly difficult because the Court of Appeal may only intervene if the judge’s findings of fact were rationally insupportable, or in making her multi-factorial evaluation of the issues, she erred in law or principle.”
She added that “it is immaterial whether the Court of Appeal finds the decision surprising or whether it would have come to a different conclusion”.
I would be quite surprised if the Court of Appeal found that the lower court somehow made such an egregious material error of fact in this case. And I would have thought that whatever legal team Thatchers is employing here would have advised their client that there is a high likelihood of failure when it comes to this appeal as well. So, unless I’m missing something significant here, this really does look like a company that’s throwing money down the toilet for no good reason.
It’s not as though there is any real instances of customer confusion that Thatchers highlighted in evidence. Were this such a problem from a public confusion standpoint, I would expect those examples to have existed and for Thatchers to make a huge deal of them in the previous suit, never mind this appeal.
So other than lining the pockets of lawyers a bit, what are we actually accomplishing here?
