It is common for supermarkets to sell own-brand ‘lookalike’ products that compete with leading brands. German supermarket chain Aldi typifies this approach, as embodied in its slogan: “Like Brands, Only Cheaper”. The question has always been how alike is too alike, a question Aldi is no stranger to testing in the courts. After a run of successes or ‘getting away with it’, depending on your view, several recent judgments in different jurisdictions and based on different IP rights suggest that the tide may be turning against lookalike products.

Thatchers v Aldi

 The English Court of Appeal has decided that brand owners can use their trade mark registrations to stop lookalike products if those registrations protect the overall appearance of a well-known product.

The decision in Thatchers Cider Company Limited v Aldi Stores Limited [2025] EWCA Civ 5 has made headlines for seemingly improving the ability of brand owners to stop lookalike products in the UK, a jurisdiction where the lack of an unfair competition law has benefitted imitators. The next best thing, the law of passing off, requires deception as to origin. However, consumers of lookalike products are rarely deceived; they know that they are buying a cheaper alternative to the branded product.

Thatchers v Aldi is notable although, like most trade mark cases, it turns on its particular facts. Aldi has also said that it will seek leave to appeal to the Supreme Court so we may not yet have the final word. Nevertheless, the case highlights the value of registering trade marks for the look of a product or its packaging, not just its name. Without such a registration in the UK, imitators will have the upper hand unless there is clear evidence of consumer deception. For this reason, Moroccanoil famously failed to stop Aldi’s “Moroccan Argan Oil” which was inspired by the distinctive turquoise and orange packaging of the luxury brand. With such a registration, judges have more room to find for the brand owner where a defendant has behaved unfairly or not in accordance with ‘honest commercial practices’.

Case background

In 2020, Thatchers, a British cider producer, diversified its traditional apple-based product line by launching a lemon cider. Thatchers registered a trade mark for the appearance of its packaging. Aldi launched its own lemon cider in 2022 under its house brand ‘Taurus’. Thatchers issued proceedings on two grounds of trademark infringement, as well as passing off.

At first instance, the Court found only a low degree of similarity with Thatchers’ mark and the evidence showed that consumers weren’t confused (including social media comments describing Aldi’s product as a “Thatchers rip-off”). Similarly, there was no misrepresentation as to origin and therefore no passing off. The controversial finding, which Thatchers appealed, was that Aldi’s packaging didn’t take unfair advantage of the reputation of Thatchers’ mark because Aldi did not intend to deceive consumers. This was despite Aldi admitting to using Thatchers’ product as its ‘benchmark’ during product development.

The Court of Appeal clarified that the correct question is whether a defendant has an intention to take advantage (not to deceive). The Court found that Aldi did intend to take advantage of the reputation of Thatchers’ mark to help sell its own product. Considerable weight was given to evidence that Aldi had ‘benchmarked’ Thatchers’ product, as well as the “manifest departure” from Aldi’s house style (Aldi’s cider range pictured below):

It was also significant that, regardless of intention, Aldi sold significant quantities of its product “in a short period of time without spending a penny on promoting it.” The Court concluded that this advantage was unfair because “it enabled Aldi to profit from Thatchers’ investment in developing and promoting the Thatchers Product rather than competing purely on quality and/or price and on its own promotional efforts.” In short, Aldi benefitted from the ‘halo effect’ of Thatchers’ mark in a classic case of freeriding.

Other recent ‘lookalike’ cases

The concept of ‘benchmarking’ was considered by the Federal Court of Australia in Hampden Holdings I.P. Pty Ltd v Aldi Foods Pty Ltd [2024] FCA 1452. In this case Aldi was held to infringe copyright in the packaging of Hampden’s Baby Bellies baby snack products:

Copyright infringement requires (an inference of) copying, not deception. The evidence was persuasive; during product development Aldi directed its designers to Hampden’s products as the ‘benchmark’, instructing them to “follow the architecture of [Hampden’s products]”. Written feedback throughout the process highlighted the similarity between the designs as being “too close to the benchmark”. The Court found that Aldi had “sought to use for its own commercial advantage the designs that had been developed by a trade rival”, awarding additional damages for the flagrancy of the infringement.

Registered designs have also been successfully enforced against lookalikes in recent English and Dutch proceedings. In 2022, British retailer Marks & Spencer successfully sued Aldi for infringing its registered designs for a “light-up gin-based liqueur” released as part of its Christmas range:

Consumer deception is also irrelevant for registered design infringement – the assessment is whether the allegedly infringing design creates the same overall impression, having regard to the sector, the informed user of the goods and the designer’s degree of freedom (e.g. a designer of computer keyboards can make fewer choices than a designer of bottles).

In December 2024, a Dutch court injuncted Aldi for infringing cosmetics company Ritual’s EU design registration for the shape of its fragrance diffusers:

Aldi was given just four hours to remove the infringing products from sale under penalty of Euros 15,000 per day of default. Proof that courts are willing to take a firm stance if there is a clear infringement.

Takeaways for brand owners

• Consider registering your product packaging and get-up as trade marks, especially in the UK where unregistered rights are difficult to enforce without consumer deception.
• There is value in multiple IP rights in an individual product: trade marks, designs and copyright. Enforcement circumstances may favour one right over another, or they may feed into each other.
• Unlike continental Europe, the UK does not have a law of unfair competition, but its disclosure process offers a clear advantage for claimants – access to product design documents can be key to proving intention to exploit a branded product.