Lidl ordered to stop selling gin brand lookalike

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Lidl's Hampstead ginImage source, Twitter/@sillytees
Image caption,
Lidl's Hampstead gin bottle was redesigned at the end of 2020

Discount supermarket Lidl has been ordered to stop selling a redesigned gin bottle that looks too similar to an upmarket rival.

A senior judge has told the retailer the redesign of its Hampstead gin breaches the trademarks of premium brand Hendrick's.

At the Court of Session in Edinburgh, Lord Clark awarded an interim interdict to the makers of Hendrick's gin.

The temporary order stops Lidl selling the redesigned bottles in Scotland.

The decision comes just months after M&S took action against Aldi over its Colin the Caterpillar cake lookalike.

It argued the supermarket's Cuthbert the Caterpillar cake infringed its Colin the Caterpillar trademark, that their similarities led consumers to believe they were of the same standard and that the product "rode on the coat-tails" of M&S's reputation.

William Grant and Sons Irish Brands Ltd instructed lawyers to to take legal steps, believing the retail giant's Hampstead gin brand resembled their own product, which is distilled in the Ayrshire town of Girvan.

The company claimed the supermarket redesigned the Hampstead gin bottle to resemble the "apothecary-style bottle" used by Hendrick's.

The legal team argued that the redesign changed the colour of the diamond-shaped label from white to a similar pale colour used on the bottle in the Hendrick's trademark.

They argued that the look of the label was changed to look like the Hendrick's label and the bottle was changed to a similar dark colour.

Image caption,
Hendrick's gin and the Lidl Hampstead redesign

The lawyers also said the redesign contained images of cucumbers which alluded to the fact that Hendrick's was infused with cucumber.

William Grant's lawyers asked for a temporary order which would force Lidl to stop selling the redesigned Hampstead gin. The firm feared sales of Hendrick's gin could be harmed by the cheaper rival.

Lord Clark agreed and said that the drinks firm's legal team shown there was a case that Lidl had breached section 10 (3) Trade Marks Act 1994.

'Intention to benefit'

In a written judgement issued on Tuesday, Lord Clark wrote: "I accept that the pursuer in the present case has not (as yet) provided a sufficient basis to show a reasonable prospect of success in establishing a change in the economic behaviour of the average consumer or a serious likelihood that such a change will occur in the future. I do however recognise that there is at least some risk to the pursuer of harm to the brand.

"I take that factor into account and find that there is a reasonable prospect of success for the pursuer in showing that the defenders intended to benefit from the reputation and goodwill of the pursuer's mark.

"Whether or not there was a deliberate intention to deceive, there is a sufficient basis for showing that there was an intention to benefit. It is difficult to view the re-design, including the change in colour of the bottle, as accidental or coincidental.

"I therefore conclude that there is a reasonable prospect of success on the part of the pursuer in showing a change in economic behaviour or a real likelihood of such a change by customers who buy from Lidl."

During an earlier court hearing, social media comments about the redesign of Hampstead gin, which retails for £15.99, were read out.

Image caption,
The court acknowledged the brand had a previous design

One said: "Hmmm...Reminds me of another gin, but I just can't put my finger on it..." - which was followed by laughing emojis).

Another person commented: "Looks a lot like another bottle of gin" - which was followed by a winking emoji.

In his judgement, Lord Clark said that Lidl could sell the Hampstead gin brand but in a form which differs from its current design.

Lidl said it was disappointed by the ruling.

A spokesman said: "We note the court's decision and have closely adhered to the requirements outlined within the ruling.

"We continue to liaise directly with the parties involved and hope to reach a satisfactory resolution in due course."

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