RPC Bites #60: M&S vs Aldi, UKIPO win for Oatly and ASA guidance on supplement marketing

Welcome back to RPC Bites. Our aim in the next 2 minutes is to provide you with a flavour of the key legal, regulatory, and commercial developments in the Food & Drink sector over the last fortnight… with the occasional bit of industry gossip thrown in for good measure.

Breaking news – Let there be light! M&S triumphs in battle with Aldi over light-up gin bottles

In a well-reasoned and digestible leading judgment of the type we've come to expect from Arnold LJ, the Court of Appeal (CoA) yesterday upheld a first instance decision of the IPEC, which found that Aldi's light-up gin bottles infringed various registered design right registrations held by M&S. There were 7 grounds for appeal in total, most of which turned on technical points of design right law. For brands and retailers, the key (and no doubt welcome) conclusion is that design right registrations are seemingly a more effective tool when it comes to combatting copycat products than trade mark registrations and unregistered rights in product get up.

The business model adopted by discount retailers such as Aldi typically consists of making relatively minor changes to packaging so that the discounter's products call to mind, but aren't straight copies of, branded originals. Whilst a spate of recent decisions suggests that this approach will suffice for sidestepping trade mark infringement, yesterday's judgment confirms that this will not be good enough when it comes to design right infringement, where the key and central question is whether a 'different overall impression' is created by the offending product.

Other helpful takeaway points for brands include confirmation from the CoA that:

• Photos which clearly and comprehensively show all product features are an extremely effective tool in infringement claims and should be filed with all design right applications (here, photos which showed that M&S' bottle could be illuminated were very important);
• Real life products that have been made to a registered design are relevant when considering the overall impression created by the designs;
• the “indication of product” field which can be populated when a registered design application is filed (which, in the case of M&S' designs was 'light-up gin bottle') can be relied upon to resolve ambiguities regarding what is shown in the images to assist with the interpretation of a design; and
• Disclosures of design documents made by brands in the 12 months before their registrations are filed do not limit that brand's ability to claim infringement and enforce their rights – Here, Aldi tried to argue that such designs disclosed by M&S formed part of the prior art and therefore curtailed M&S' ability to enforce its rights on a legislative technicality – this was rejected by the CoA. 

If you're looking for more detail, see our previous reporting on this long-running saga here, here and here.

Supermarket loyalty prices next to experience the CMA's spotlight

On 30 January 2024, the CMA hit go on its hotly anticipated investigation into supermarket loyalty prices. The practice of supermarkets offering significant discounts on selected products to customers who sign up to their loyalty schemes has been criticised by MPs, despite booming in popularity amongst shoppers. The CMA will now consider (amongst other issues): (i) whether any aspects of loyalty pricing could mislead shoppers including whether a promotion is genuine or as good a deal as presented; (ii) whether any groups of shoppers are disadvantaged by loyalty price promotions; and (iii) whether loyalty pricing is impacting consumer behaviour and competition.

Although Tesco Clubcard fans are likely to be intrigued by the results of the CMA's findings, the CMA's investigation is not universally popular with some dubbing it a waste of public money and struggling to understand how the CMA might rectify any issues that are ultimately found.

The CMA expects to publish an update on its investigation in July and the review is set to conclude by the end of the year. 

Aldi strikes again

In better news for Aldi, it has successfully defended the trade mark infringement claim brought against it by Thatchers (as reported on in Issue 53 of RPC Bites).

To re-cap, Thatchers, the Somerset-based cider maker, launched its claim for trade mark infringement against discount supermarket Aldi back in 2022.  After Thatchers had released its new Cloudy Lemon cider in 2020, Aldi released a "copycat" version of the product under its own 'Taurus' cider brand. Lookalike products or "copycats" are not a new phenomenon, and cause problems for brands who have invested in developing and marketing a new product, only for a 'dupe' to hit the shelves in discount supermarkets.

In its claim, Thatchers alleged that Aldi had taken unfair advantage of its trade mark for the Cloudy Lemon cider such that the public would think there was a link between the Thatchers product and the Aldi equivalent. Evidence from disclosure in the trial revealed that Aldi had indeed benchmarked their product against Thatchers and instructed itsproduct packaging team to make the cider look like "a hybrid of Thatchers and Taurus". Despite this, after going through each element of the Aldi product packaging in turn to determine how similar it was to Thatchers' Cloudy Lemon, the Court's decision back in January was that the final Aldi packaging was overall not similar enough to amount to trade mark infringement.

This decision was a loss for Thatchers, but may provide guidance to eagle-eyed retailers as to just how similar their copycat products can be to another retailer's without infringing their trade marks – for example, something as minor as the placement of leaves (attached to the lemons vs. floating freely near the lemons) was determinative in the finding of dissimilarity between Aldi and Thatchers' marks. Those in this space will, however, need to tread more carefully where registered design rights exist (as the 27 February 2024 Court of Appeal decision in M&S v Aldi confirms).

T-oat-al success for Oatly in long-running trade mark dispute

Oatly has been successful in its appeal against the UKIPO's decision to invalidate its trade mark "Post Milk Generation" in three food and drink related classes (the Marks). The UKIPO's decision was prompted by the dairy trade association, Dairy UK Ltd's, claim that the use of the word 'milk' was at risk of deceiving the public since the products were oat based.

Although the UKIPO did not go quite so far, it decided that because the Marks contain the word 'milk' in relation to goods which are not, in fact, milk, the Marks were invalid under pre-Brexit EU regulations.

The High Court, however, overturned that decision and ruled in Oatly's favour. It confirmed that whilst descriptions such as "oat milk" would not be permitted given the oat-based nature of Oatly's products, the Marks neither suggested that Oatly's products were, in actual fact, milk or milk based and were not descriptive of the goods. Following the conclusion of this long-running dispute, Oatly will retain its registrations and be entitled to exploit them in the usual way.  

The ASA's supplement-ary advice on food supplements and health claims

As sales of vitamins and supplements continue to soar in the UK, the ASA has published a timely reminder of the kinds of health claims which are permissible for supplements.

The headline point is that supplements are considered 'food' for the purposes of the ASA's advertising codes and therefore any medicinal claims in relation to supplements (direct or implied) are prohibited. Medicinal claims are wide-reaching – they can be as simple as claiming to treat or prevent a hangover or as far-fetched as claiming to cure Alzheimer's. That said, 'disease reduction' claims can be made in relation to supplements, if they are authorised on the Great Britain nutrition and health claims register (the GB NHC Register).

Similarly, general health claims i.e., reference to a general benefit of a nutrient or food for overall good health can be made in relation to supplements provided that such claims are supported and accompanied by an appropriate specific health claim laid down in the GB NHC Register. Interestingly, even where a general health claim is made in a customer testimonial, for example, "my pain totally disappeared", the rules on supplements and health claims must still be followed – the ASA advises that customer testimonials do not absolve advertiser responsibilities.

CMA publishes consumer research on grocery unit pricing

The CMA published the results of its unit pricing project on 30 January 2024. The project, which began in January 2023, sought to understand: (i) how UK consumers make use of unit pricing information when grocery shopping; (ii) the variation in unit prices of grocery products; and (iii) whether unit pricing information helps UK consumers save money.  

The CMA found that "awareness, understanding and use of unit pricing varied greatly" amongst shoppers, with only around half of those surveyed utilising the information. Although the use of unit pricing was inconsistent and varied by product type, generally the CMA noted that consumers often assumed that larger packs meant lower prices per unit which is, of course, not always the case. It concluded that unit pricing should be displayed more clearly and in a uniform specified manner – as it stands, the information is too discreet and insufficiently eye-catching, particularly when compared to the way promotions are labelled.

The Government acknowledged that unit pricing legislation reform is required following the CMA's publication of its interim report on unit pricing information in July last year and has already made some proposals in this regard. However, appreciating that reforms will not come into force overnight, in the interim, the CMA has urged retailers to improve the consistency and comparability of unit pricing information so that consumer can make more informed decisions and meaningful comparisons when shopping.

Unilever's environmental claims under CMA scrutiny

Since mid-December 2023, Unilever has been under investigation by the CMA for environmental claims made on product packaging and advertising materials. The CMA appears to be concerned with the vagueness and clarity of claims made by Unilever as well as its use of "natural looking" imagery. Sarah Cardell, Chief Executive of the CMA, commented: "So far, the evidence we’ve seen has raised concerns about how Unilever presents certain products as environmentally friendly. We’ll be drilling down into these claims to see if they measure up. If we find they’re greenwashing, we’ll take action to make sure shoppers are protected."

Unilever intends to fully cooperate with the investigation noting its commitment to making "responsible", "transparent" and "clear" claims about its products and that it has "robust processes in place to make sure any claims can be substantiated."

This investigation is aligned with the CMA's broader agenda of investigating greenwashing across a variety of sectors (including FMCG).