M&S and Aldi have been in the IP news again the last couple of weeks – this time in relation an appeal which Aldi made in respect of its “copycat” gin bottle product.  The Court of Appeal upheld the High Court decision that Aldi had infringed M&S’s registered design for a range of light up gin-based liqueurs on the basis that Aldi’s product did not create a sufficiently “different overall impression”.  

It is not difficult to see why this conclusion was reached when you see the products together but as with any case it turns on the law and these types of cases are not normally easily won.  

Why is this case important in the IP world?

What this case does is once more highlight the importance of protecting your intellectual property as a business, whether that be designs or brands. It is important to think about what you own as a business and what you would not want other businesses to copy, and to look to protect it as much as you can by way of registered intellectual property rights.  

The decision is seen as being important as it sets a standard in respect of copycat products. This is not the first time these companies have been in dispute. In 2021 Aldi reached a confidential out of court agreement with M&S in a dispute over alleged similarities between caterpillar cakes sold by Aldi and M&S. A new version of Aldi’s Cuthbert the Caterpillar has since been launched. 

What impact might this case have?

These types of cases are interesting to follow because they highlight how important brand and product intellectual property protection is to both small and large businesses. There has been a significant increase in the number of “copycat” and “lookalike” related cases, especially involving retailers and supermarkets. These cases have largely progressed to Court, which indicates brand owners’ confidence in winning these types of cases. The social media attention which these types of cases normally attracts is also not to be underestimated.  

This most recent decision may encourage even more registered design owners to bring enforcement actions against ‘lookalike’ products. This could be both large and small businesses if it is in the interests of the brand to do so.  

The importance of intellectual property protection

It is relatively cheap to obtain design registrations and they are a very useful tool in protecting the overall appearance of a product. The strength of them in combination with other IP rights, such as copyright and trade marks, is not to be underestimated. It remains to be seen whether this case will make “copycats” think twice before introducing new product ranges, but from a legal point of view it is an interesting case which emphasises the importance of using registered design rights to protect products.  

We help clients to understand what intellectual property rights they may own which can be protected. If you are unsure of your own position, we can help to identify where you may be able to strengthen your own IP ownership.