Trade mark disputes often revolve around the perceived level of confusion that products might trigger amongst consumers. This was a key element in a case involving a long-established cider producer and a well-known retailer.

Launching proceedings at the High Court, the producer claimed that the retailer had infringed the trade mark of its cloudy lemon cider product. It asserted that an own-brand alcoholic cloudy cider sold by the retailer had an overall appearance that was highly similar to that of its own and that the retailer had intentionally mimicked the appearance of its product. This was done, the producer claimed, to cause a link in the minds of consumers between the two items in order to encourage consumers to buy the retailer's product, and to take unfair advantage of, or cause detriment to, the distinctive character and repute of the trade mark, without due cause.

The retailer accepted that it used the producer's cider as a 'benchmark' when developing its own product, but denied trade mark infringement.

Having considered the evidence and conducted a blind taste test of both products, the Court found that, although the appearance of the retailer's product may bring to mind the producer's trade mark for the average consumer, this was not sufficient to cause confusion. The claim for trade mark infringement was dismissed.

On the question of detriment, the Court found that this was not a case where the products were so significantly different that the taste of the retailer's beverage was liable to cast the producer's beverage, sold under the trade mark, in a negative light.

The passing off claim was also unsuccessful.