There have been a growing number of trade mark disputes reported in the press recently, involving established brands in the food and beverage sector and supermarket copycats – from caterpillar themed cakes to own label inspired India Pale Ale. Supermarket copycats are nothing new, but some of the recent disputes raise thought provoking questions as to how a brand owner might take steps to layer up on their trade mark protection in order to make it more difficult for supermarkets to launch copycat products.
On 25 May 2021 the Court of Session in Scotland issued a decision granting an interim injunction to the owner of the Hendrick’s gin brand, banning Lidl’s redesigned Hampstead gin from sale in the UK. Central to Hendrick’s success was its UK registered trade mark for its gin bottle (UK registration No. 00910544575 – shown below), which Lidl had moved significantly closer to when redesigning its Hampstead gin product (before and after images of the Hampstead gin bottle are shown below).
Interestingly, the owner of the Hendrick’s gin brand failed to establish that there would be a likelihood of confusion between the two products or that, despite the redesigned Hampstead bottle bringing the Hendrick’s bottle to mind, there would be a misrepresentation amongst the relevant public. However, it was the reputation that UK trade mark registration No. 00910544575 enjoys in the UK that saved the day for the brand owner. The judge considered that the Hampstead bottle would call the Hendrick’s mark to mind and there was a reasonable prospect of Lidl’s product taking an unfair advantage of the reputation in the earlier mark or otherwise damaging that reputation.
This decision confirms that simple word and logo mark registrations may not be sufficient to combat copycat products. Protecting other important branding elements, such as shapes and trade dress, are an essential part of building a strong Intellectual Property portfolio and they may just hold the key to success against sophisticated infringers.
We will be providing further detail and discussion on this interesting case in due course – please visit our website www.reddie.co.uk.
Reddie & Grose are specialists in advising on and protecting Intellectual Property rights.
This article is for general information only. Its content is not a statement of the law on any subject and does not constitute advice. Please contact Reddie & Grose LLP for advice before taking any action in reliance on it.