Aldi is currently at the centre of another intellectual property row over its new ‘Moo’ range of gourmet yogurt, which The Collective argues is misleading consumers.
Both the ‘Moo’ and ‘The Collective’ range of yogurts are available in raspberry and passion fruit flavours and are sold in clear tubs with black lids. The flavours are indicated by pink and yellow labels with similarly stylised fonts.
The Collective has not yet issued legal proceedings but has expressed its frustration at Aldi’s imitation of its brand. This comes shortly after Heck, a well-known sausage brand, indicated it would take legal action against Aldi in respect of Aldi’s Italian chicken chipolatas. Aldi’s packaging sharing a number of elements with Heck’s own Chicken Italia sausage range.
Aldi’s position is that whilst they take inspiration from the market, they do not seek to copy brands.
Certainly taking inspiration from competitors is not an infringement of intellectual property but is normal business practice. Given that Aldi has not used either of The Collective or Heck’s trade marks, there is no action which these brands can take against Aldi for trade mark infringement.
Instead, any action against Aldi would be in passing off. To succeed, a brand would need to show that it had goodwill, consumers had been deceived by Aldi and that damage had been caused as a result.
Recent case law suggests that there is unlikely to be deception when buying copycat products in Aldi because, although Aldi is intending to make consumers think of a premium brand when seeing the Aldi version, purchases are not likely to be made as a result of any false assumptions by the consumer. Aldi’s argument would be that, although the Aldi versions may ‘call to mind’ the premium brand, customers are not confused about what they are buying at the point of sale.
However, the landscape may be changing. It is noted that the discount supermarkets have started to offer premium brands at a discounted price alongside their own ranges, often for limited periods. This change of direction may increase the likelihood of consumers being deceived, as it is now not uncommon to see premium brands on the shelves. This raises the question as to whether consumers would not now be sure whether Heck sausages and The Collective yogurt were being stocked in Aldi.
No doubt Aldi would argue (and have taken extensive legal advice on the point) that their own product range name, i.e. Moo and Ashfield are prominently placed on the products to easily identify their origin and prevent consumers from being misled.
It will be interesting to see whether proceedings are issued against Aldi given the similarities in the products. This is no doubt a topic which consumers often consider to be simple on the basis that Aldi has copied another brand to attempt to trade off its goodwill, which it should not be allowed to do. However, in the context of passing off, this issue is far from straightforward and businesses (such as Aldi) spend millions of pounds on designing products which closely replicate competitors but are not liable for intellectual property infringement.
It will be interesting to see what happens and whether these issues lead to calls for further discussions on whether the UK should have a formalised unfair competition regime to combat copycats.
We will keep you updated.
For more information please contact Charlotte Bolton, Associate in the Commercial Dispute Resolution Team, on charlotte.bolton@michelmores.com or +44 (0)1392 687745.
