A judge who was invited to conduct a taste test of rival ciders at the centre of a trade mark dispute said today the two products tasted ‘very similar’.
However Her Honour judge Melissa Clarke, sitting as a High Court judge, found there was ‘no likelihood of confusion’ between budget supermarket Aldi’s cloudy lemon cider in its Taurus range and Thatchers’ canned cloudy lemon cider.
Thatchers claimed Aldi had infringed its trademark as the overall appearance of the Aldi product is ‘highly similar’ to the Thatchers can. The judge found that ‘the overall appearance’ was similar but ‘to a low degree’.
During the hearing at the Rolls Building, the judge was invited to conduct a blind taste test of the ciders. She confirmed she had done so in her judgment, adding: ‘I am no expert and have never tasted cloudy lemon cider before. I found the taste of the two products to be very similar, but I accept they are different.
‘This is not a case, in my judgment, where the products are so significantly different that the taste of the Aldi product is liable to cast the Thatchers product sold under the trade mark in a negative light.’
The judgment said there was ‘no direct evidence of actual confusion of a direct or indirect nature’.
It added: ‘The fact that there is no real evidence of direct or indirect confusion, despite the very high volumes of sales of both the Aldi product and the Thatchers product, is a factor weighing against the likelihood of confusion, although not determinative of it.’
The judge said there is a ‘low similarity’ between the two products and the elements which she found some similarity, like the use of the colour yellow and lemon products, was ‘ubiquitous’. She added: ‘The use of lemons and lemon leaves on lemon-flavoured beverages including lemon ciders is very common.’
Dismissing the claim for trade mark infringement, the judge said: ‘there is no real likelihood that the average consumer, taking into account all these circumstances which are likely to operate in his mind and the impression that the sign is likely to make on him, will be confused.’
