Navigating Challenges of lookalikes in Food and Beverage Sector

In the bustling aisles of supermarkets, the food and beverage sector thrives on visual appeal and brand recognition. Companies invest significantly in creating distinctive packaging and product designs to capture consumer attention. However, the rise of "lookalikes" poses a significant threat to brand identity, consumer trust and revenues.

Lookalike products mimic the appearance, packaging or branding of established brands, often with the intention of capitalising on the reputation of the established brand by misleading consumers as to the origin of the lookalike product.

Brand owners are responding to companies producing and marketing lookalike products by enforcing their intellectual property rights; and what is clear from recent case law is that those with the foresight to register their packaging have come out on top! This short article looks at some of the most recent cases addressing lookalikes in the food and beverage sector and proposes some key strategies for brand owners when looking to strengthen their position against lookalike products.

Thatchers v Aldi: A Landmark Decision

The Court of Appeal's ("COA" ) decision in Thatchers v Aldi [2025] marked a pivotal moment in the ongoing battle against lookalikes. Thatchers, a renowned cider producer, alleged that Aldi's cider product was designed to mimic the appearance and branding of Thatchers' Cloudy Lemon Cider product.

Thatchers is the proprietor of a registered UK trade mark comprising an illustration of lemons and the words "THATCHERS CLOUDY LEMON CIDER" on a yellow background, which is reproduced on the front and rear of each can of cider and on the cardboard packaging. Thatchers claimed that its registered trade mark was infringed by Aldi's packaging for its cloudy lemon cider sold under its Taurus brand pursuant to s.10(2) (likelihood of confusion) and 10(3) (unfair advantage) of the Trade Marks Act 1994. Thatchers also relied on passing off, arguing that  Aldi's product could mislead consumers into believing they were purchasing Thatchers' cider.

Thatchers' claim was dismissed at first instance, but they appealed the finding on s.10(3) only. The CoA reversed the initial finding of no infringement, concluding that s.10(3) was in reality a remedy for unfair competition, where intention to take unfair advantage was required, and not an intention to deceive the consumer (as indicated by the Judge at first instance). The CoA found a close resemblance between Thatchers' Registered Trade Mark and Aldi's Cloudy Lemon Cider product and concluded that Aldi intended for its product to remind consumers of Thatchers' earlier product. Accordingly, Aldi was found to have taken advantage of the reputation of the Thatchers' lemon cider to assist it in selling its own competing product, by riding on the coat-tails of that mark, through a transfer of image. This was the case even though Aldi was found not to have intended for consumers to be deceived or even confused as to the trade origin of Aldi's product (which come within the scope of s.10(2) and passing off).

By registering their product packaging as a trade mark, Thatchers was able to succeed in establishing trade mark infringement through arguing that Aldi's product called to mind their earlier trade mark, even though the average consumer would not be confused as to the trade origin of Aldi's product and even though there was no evidence of consumer deception. The case illustrates how strong trade mark protection can prove a real force against lookalike products and enable brand owners to safeguard their investment in establishing their brands.

Aldi lodged an application for permission to appeal the CoA's decision to the Supreme Court in March 2025. If permission to appeal is granted, the case will be reviewed by the Supreme Court, who will have the final word on the matter.

Thatchers v Aldi  reflects a recent trend of UK Courts deciding in favour of brand owners in their battles against competing products (such as Lidl v Tesco and Iconix v Dream Pairs). We turn now to consider other cases demonstrating this approach in relation to lookalike products.

M&S v Aldi Round One: Colin vs Cuthbert

The highly publicised 'Colin the Caterpillar' case is another significant example of the challenges posed by lookalikes. Marks & Spencer (M&S) claimed that Aldi's caterpillar cake, named "Cuthbert," was a lookalike of their iconic "Colin the Caterpillar" cake. M&S argued that Aldi's product infringed their trade mark rights in the word marks "Colin the Caterpillar" and "Connie the Caterpillar"  as well as in their figurative trade mark protecting the appearance of the Colin the Caterpillar product packaging. M&S claimed that Aldi's Cuthbert was likely to confuse consumers as to the origin of the Cuthbert product and that it took unfair advantage of M&S's reputation in their "Colin" cake.

Ultimately, we did not get the benefit of seeing how this case would play out in court as the case was settled, with Aldi agreeing to modify the packaging of "Cuthbert" to differentiate it from "Colin."

M&S v Aldi Round Two: Snow Globe Gin Bottles

M&S and Aldi faced off again in 2024 when M&S alleged that Aldi's light-up festive gin bottles were designed to mimic the appearance of their own premium gin product. The case centred around design rights, with M&S claiming that Aldi's bottles infringed their UK registered designs for gin-based liqueur bottles.

The High Court in the first instance found that Aldi's product infringed M&S's registered designs. Aldi's appeal to the CoA was dismissed and the Court's finding of infringement was maintained because Aldi's design did not produce on the informed user a different overall impression to that given by M&S's registered designs. In coming to this conclusion, the Court considered that an informed user in comparing the two designs would have regard to: the identical bottle shapes, the identical stoppers, the winter scene comprising tree silhouettes depicted on the outside of the bottles, the snow effect given by the floating gold flakes and the integrated light featured at the bottom of the bottle in both designs.

The Court's decision underscored the importance also of design rights in protecting the aesthetic aspects of a product and highlights the benefit to companies of applying to register as designs the distinctive features of their products in order to  provide a strong legal basis for challenging lookalikes. Registered designs are inexpensive and quick to register, as there is no examination for novelty.

Hendrick's v Hampstead

In 2021, owners of Hendrick's Gin, William Grant & Sons, challenged Lidl's re-brand of its competing "Hampstead" gin on the basis that it too closely resembled the famous dark, opaque apothecary-style bottle bearing a diamond shaped label with which "Hendrick's" Gin had been long associated. William Grant & Sons relied on infringement of its registered trade marks and passing off to challenge the re-branded "Hampstead" gin which, after being sold for 10 years in a clear green glass bottle with a white diamond label, was in 2020 changed to a dark apothecary-style bottle. The Judge at first instance was not convinced that customers would confuse the two products but considered that there was a link between them such that Lidl's rebranded product called to mind the registered trade mark relied upon by William Grant & Sons, due to there being sufficient similarity between the re-branded "Hampstead" gin and the trade mark.

William Grant & Sons succeeded in convincing the Judge that they had a reasonable prospect of success in demonstrating that Lidl intended to enhance the attraction of their gin and influence the economic behaviour of customers by adopting a similar get-up to the Hendrick's gin bottle, thereby creating an unfair advantage. Accordingly, there was a prima facie case for infringement. This was upheld on appeal to the Inner House of the Scottish Court of Session.

On appeal to the Inner House, Lidl challenged that the registered trade mark relied upon by William Grant & Sons did not include a dark apothecary-style bottle. The Hendrick's trade mark depicted a bottle of a particular shape and label; but it was claimed that it did not show a white bottle, nor did it expressly limit itself to a clear bottle. Under the heading "Mark Description/Limitation", of the trade mark application there is written "Colour claimed: cream, gold, black, white, green, blue and grey". According to the Judge at first instance, the "Mark Description/Limitation" did not restrict the mark to specific colours. On appeal, the Court held that while no colour was specified in the trade mark application, extensive use of a particular colour could result in that colour being associated in the mind of a significant portion of the public with the trade mark. As the getup of Hendrick's bottle had for some time consisted of a dark/brown, opaque, apothecary-style bottle on which the trade marked label was affixed, it was held that Lidl's use of the same colour might be seen as taking unfair advantage of that mark.

The judgment was at first instance limited to Scotland but, on appeal, was extended to also cover England and Wales. Consequently, Lidl was required to cease sales of its rebranded "Hampstead" gin in both jurisdictions.

Strategies for Protection

1. Trade Mark Registration: Companies should ensure that all key elements of their brand identity, including brand names, logos and distinctive packaging designs are registered as trade marks. This provides a legal basis for challenging lookalikes that infringe on these elements. In addition, where the trade mark registration does not specify a particular colour or colours, this broadens the scope of the mark's protection. Making extensive use of the mark in a particular colour can then result in that colour being associated with the mark in the mind of the public, meaning that a third party's use of the same colour could be viewed as taking unfair advantage of the registered mark.

2. Registered Design Protection: Registering design rights can offer protection for the aesthetic aspects of a product, such as its shape, configuration, or ornamentation. This can be particularly useful in the food and beverage sector, where packaging design is a key differentiator in the minds of consumers.

3.Brand Monitoring: Regularly monitoring the market for lookalikes can help companies identify potential infringements early. This proactive approach allows businesses to take swift action, whether through legal channels or negotiation.

4. Consumer Education: Educating consumers about the unique features of a brand can reduce the impact of lookalikes. Clear communication about what sets a product apart can help maintain brand loyalty and reduce confusion.

5. Proactively Gather Evidence: Monitor and log evidence of consumer complaints, feedback and any impact on sales revenues.

6. Don't be afraid to embrace publicity: A well-aimed campaign may help onside loyal consumers as well as expose differences in quality in the competitor product (see the Tony's "Chocolonely" campaign against Lidl for the launch of its "Fairtrade Way to Go" bar of chocolate, where Tony's disputed the ethical sourcing claimed by Lidl).

Lookalikes present a significant challenge to brand integrity and have been particularly prevalent in the food and beverage sector. While the legal landscape offers some avenues for protection, companies must adopt a multifaceted approach to safeguard their intellectual property rights. By combining legal strategies with proactive brand management, businesses can effectively navigate the challenges posed by lookalikes and maintain their competitive edge.