M&S has gone to the High Court seeking an injunction against alleged infringement of its gin bottle design. The retailer says Aldi’s blackberry and clementine gin liqueur is “strikingly similar” to its own Light Up gin.
Commenting on the story, Charlotte Wilding, Partner and Head of Trade Marks at Wedlake Bell said:
“It is rare for retailers to have two fights ongoing in the same year, but perhaps unsurprising given that, arguably, a number of Aldi products walk the line between copying and taking inspiration from a third-party product. This ‘copycatting’ is a legal grey area and certainly results in interesting court actions – if it gets to that point. Whilst ‘Caterpillargate’ concerns trademark infringement, this action focuses on design infringement and the similarities between the two retailers ‘light up’ gin products, namely the shape of the bottle, integrated light feature at the bottom of the bottle, gold leaf flakes within the product and the winter forest graphic.
Trademarks and patents tend to be the more well-known and favoured IP right but design rights provide for a real and effective IP right so should not be overlooked. Another point to note is Aldi’s clever use of social media and marketing to its advantage with the hashtag ‘Free Cuthbert’ trending on Twitter in April, including Cuthbert being arrested in the Christmas advert and renaming Marks & Spencer to ‘Marks & Snitches’. It will be interesting to see what Aldi create this time and whether M&S are now more prepared for an equally clever response. Although success in a court action and / or settlement removing the similarities between products is the end goal, retailers must also be careful not to lose public favor.”