Copycat products and discount supermarkets have been a hot topic of late, with the dispute between M&S and Aldi over Aldi's alleged Colin lookalike "Cuthbert" generating significant media attention. In a similar dispute between Lidl and the producers of Hendrick's gin, the Scottish Court of Session in Edinburgh has ordered Lidl to stop selling redesigned bottles of its "Hampstead Gin".
The producers of Hendrick's gin alleged that the redesigned bottle took unfair advantage of the reputation of their trade mark protecting the design of the Hendrick's bottle and diamond label, and also amounted to unlawful passing off.
Lord Clark accepted that the Hendrick's mark relied on had acquired a reputation and that there was a case to argue on the basis of unfair advantage. Based on that finding, Lord Clark granted an interim interdict temporarily stopping Lidl from selling the redesigned Hampstead Gin.
The decision of Lord Clark illustrates how proprietors of registered trade marks can rely on unfair advantage claims to combat against copycat products, even in circumstances where there is no actual or likelihood of confusion. The decision might be seen as a warning sign for discount supermarkets that sell cheaper "lookalike" versions of the products of well-established, household brands.
The recent well-publicised lookalike dispute between M&S and Aldi highlighted the influence of social media on public opinion. Here, the decision of Lord Clark also illustrates the power of social media, not only on public opinion, but also as evidence in legal proceedings concerning lookalike products. In this case Lord Clark accepted that various social media posts supported the unfair advantage claim and the argument that the redesigned Hampstead Gin was intended to benefit from the reputation of the Hendrick's mark and was liable to influence the economic behaviour of consumers.
The producers of Hendrick's will no doubt be encouraged by this early victory, but it will be interesting to see how the case evolves and if the trial judge reaches the same conclusions on unfair advantage.
See here for a more detailed summary of Lord Clark's decision.