Lidl v Tesco

The latest instalment of the supermarket battles is in. Judgment in relation to the appeal in Lidl v Tesco was handed down earlier this week.

The Court of Appeal has upheld the decision of the High Court that Tesco’s use of the yellow roundel on its ‘Clubcard Prices’ signs does infringe Lidl’s registered trade mark.

It was not all plain sailing for Lidl within the Court of Appeal. The decision on bad faith registrations for a number of registered marks (without the text Lidl) was upheld and Tesco successfully overturned the decision on copyright infringement.

Aside from the obvious interest in another instalment of the supermarket battles, the judgment does address a number of interesting aspects. Of particular interest, are the comments on the potential value for a court to receive evidence of shopping habits of consumers. Lord Justice Arnold stated:

“The fact that evidence is often unnecessary [in relation to trade mark and passing off disputes] does not, however, mean that evidence, where it is available, is of no value …

When deciding issues such as likelihood of confusion, it can be of value for the court to receive evidence as to the shopping habits of consumers of the relevant goods or services: for example, as to whether they are in the habit of reading the label on an item before selecting it for purchase or whether they simply rely upon the appearance of the packaging…” 

There will be much commentary and speculation as to how Lidl’s pursuance of this case ultimately may assist its competitors in the complaints of “look alike” products featuring on supermarket shelves. We wait to see how this will continue to play out in the courts over the coming months and years.