This year has seen many trade mark disputes affecting the food and drink industry hit the headlines, including the ongoing legal battle involving ‘Colin The Caterpillar’ between Marks & Spencer and ALDI. In this ‘Bitesized’ update, we consider some of the most notable ongoing cases and recent decisions relevant to the food and drink industry.
Since the start of this year, there have been several high-profile trade mark disputes and applications in the food and drink industry in the UK. These include:
1. Marks & Spencer v ALDI – perhaps the most notable ongoing dispute has seen M&S issue a formal intellectual property claim in the High Court in April that alleged that ALDI’s ‘Cuthbert the Caterpillar’ cake infringes the IP in its ‘Colin the Caterpillar’ cake. The latter being registered as a trade mark in 2008. This dispute will consider the similarity of the products, whether there was confusion by consumers between the products and whether ALDI benefited commercially by the alleged IP infringement. The court proceedings are ongoing.
2. Hendrick’s Gin v Lidl – Whilst gin does not have the ‘Geographical Indication’ protection that food and drinks like Scotch Whisky and Welsh Gower Salt Marsh Lamb (see below) benefit from, Hendrick’s was still able to bring a claim against Lidl in the Scottish Court of Session alleging that Lidl’s redesigned own brand’s, Hampstead’s, gin bottle infringed its UK trade mark. This resulted in Lidl being forced to temporarily stop selling its own Hampstead gin brand in May for the reasons summarised in the Scottish Court of Session’s judgment.
3. Oatly v Glebe Farm – last month, a family-run Cambridgeshire based company successfully defended Oatly’s legal claim that Glebe Farm’s ‘PureOaty’ oat milk brand was seeking to take unfair advantage of Oatly’s trade marks and that there was “passing off” based on the similarities between the packaging, including the use of a particular colour and irregular font. In his judgment, Judge Caddick said “…it is hard to see how any relevant confusion would arise from the defendant’s use of the sign “PUREOATY”. In particular, the use of “PURE” as a prefix to “OATY” and the appearance of the carton as a whole seems to me to preclude any likelihood of the “PUREOATY” product being seen as some sort of sub-brand of Oatly.’
4. Welsh Gower Salt Marsh Lamb – on 11 August 2021, Welsh Gower Salt Marsh Lamb was the first new food to receive ‘Geographical Indication’ protected status, after the end of the Transition Period with the EU, under the UK’s new independent Geographical Indication schemes. The meat, from lambs born and reared on the Gower Peninsula in South Wales, is now protected and registered as a Protected Designation of Origin (PDO) in view of its unique characteristics from the north Gower coastline’s vegetation and environment. This enables them to use the relevant GI logo on their product and provides Welsh Gower Salt Marsh Lamb with appropriate protection from imitation.
There has been a recent surge in intellectual property disputes involving the food and drink industry. We anticipate this trend will continue, particularly with the development of niche foods and drinks. Many of these cases are not only a reminder of the important legal issues to consider when pursuing an intellectual property claim, but also the wider commercial and PR implications that may be associated with pursuing them.
Our Disputes and Corporate and Commercial teams are highly experienced in advising businesses on IP issues including trade marks. If you would like advice about protecting your intellectual property, please get in touch.