M&S sues discounter Aldi over ‘copycat’ Christmas gin

Marks and Spencer is taking discount rival Aldi to court for a second time this year, on this occasion over a Christmas gin liqueur with edible gold flakes.

Papers filed at the High Court on December 3 allege that since around early November, Aldi has been selling gold-flake gin liqueurs branded “The Infusionist” in clementine and blackberry flavours with bottle designs that are copies of M&S Light-Up Gin, three varieties of which were registered as designs earlier this year.

The M&S product, which is £6 more than the Aldi version, also has a bell-shaped bottle that is illuminated from below, with gold flakes in the liquid to give the impression of snow. It is around the same strength as port or sherry.

Aldi’s liqueurs “constitute designs which do not produce on the informed user a different overall impression to the [M&S] designs,” the documents said, defining an informed user as “a member of the general public who is interested in purchasing liqueur during the Christmas period”.

By way of evidence, intellectual property lawyers Stobbs referenced various press articles that all compared the Infusionist ranges to the M&S product and noted its lower price, along with tweets from members of the public that did likewise.

M&S is seeking an injunction to restrain Aldi from infringing its designs, require it to surrender or destroy its stock and pay damages plus costs. Aldi has already rejected requests to stop selling the products.

M&S said it was one of the first retailers to introduce glitter gin globes to the UK market and knows “the true value and cost of innovation”.

“We will always seek to protect our reputation for freshness, quality, innovation and value and protect our customers from obvious copies.”

Aldi did not immediately respond to a request for comment.

“This case is about design rights, a commonly forgotten but very effective intellectual property right in protection against copycats,” said John Coldham, an intellectual property rights lawyer at Gowling WLG.

The dispute follows one earlier in the year about chocolate party cakes. M&S alleged that Aldi’s “Cuthbert” was a direct copy of the Colin the Caterpillar cakes that it has been selling since the early 1990s. That case is continuing.

Coldham noted that most cases relating to copycat branding made against Aldi are settled before they reach trial, and that the German-owned retailer appears to welcome the publicity.

“Aldi will perhaps be hoping that another dispute with M&S will raise its profile with its target market yet further,” he said. “It may take a while to declare a true winner in this one.”