The latest high profile legal battle has seen Lidl allege that Tesco has used the background of its trade mark and logo – the blue square that contains a thin red circle outline that is filled yellow – for the promotion of Tesco’s Clubcard discounts. Given that Tesco has made no reference to the lettering ‘Lidl’ that appears on Lidl’s trade mark and logo, it will be interesting to see whether the court determines that Tesco has infringed that trade mark.
Lidl will be looking to demonstrate to the court, whilst potentially making other legal arguments including passing off, that as Tesco’s Clubcard promotion sign shares similarities to Lidl’s trade mark and is used for identical services (i.e. by a competitor supermarket):
• there is a likelihood of confusion on the part of the public between Lidl and Tesco, which includes a likelihood of association of Tesco’s Clubcard promotion sign with Lidl (and Lidl has already referred the court to a survey of members of the public to do so); and/or
• as Lidl’s trade mark has a reputation in the UK, Tesco’s Clubcard promotion sign is without due cause, and its use takes unfair advantage of, or is detrimental to, the distinctive character or the reputation of Lidl’s trade mark and logo (and Lidl has already referred the court to Lidl’s reputation as a discount supermarket and alleged that the background of its trade mark and logo as being distinctive to Lidl in the eyes of the public).
Whilst it is yet to be seen how this latest IP legal battle between the major supermarkets plays out, the case raises some interesting legal issue. And, we envisage that wider commercial and PR implications will come into play (especially if this case receives media and press coverage anywhere near the extent of Aldi’s & Marks & Spencer’s dispute), that may see this high profile dispute settled before it has its day in court.
Our Disputes and Corporate and Commercial teams are highly experienced in advising businesses on IP issues including trade marks and passing off. If you would like advice about protecting your intellectual property or if it’s alleged that you have infringed the intellectual property of another, please get in touch.