Good news for FMCG brands in that Lidl has scored somewhat of an own goal in the development of the case law surrounding lookalikes.
Lidl recently alleged that Tesco’s use of a graphical device of a blue square background and a yellow circle for its Clubcard scheme amounted to s.10(3) TMA infringement of its marks (the “Lidl Marks”) – taking unfair advantage of the reputation developed in the Lidl Marks, as a “discounter” supermarket that offers value. It further alleged copyright infringement and passing off.
Whilst this was not a lookalike claim per se, this Judgment is helpful to rights holders for a number of reasons, not least the fact that Lidl, as a serial packaging copyist itself, may end up having its own positive court judgment used against it in the future. Indeed, Smith J’s findings that colour and shape were key features of the Lidl Marks, with the “Lidl” word being less of a differentiator, are invaluable to those pursuing lookalike claims and support the conclusions of a recent behavioural science literature review commissioned by Stobbs on the Psychology of Lookalikes.
Amelia Sainsbury and Nirmal Trivedy explain more and analyse how this case has developed the case law surrounding lookalikes in an article for the Wolters Kluwer Trademark Blog that you can read here.