Recently, an Appeal Court in the UK ruled that ALDI supermarkets had infringed a trademark registered by a cider company to protect the image of their product:
Although this is an Anglo-Saxon ruling, it caught my attention because the plaintiff chose to register the trademark and arguing trademark infringing, rather than unfair competition, which is a more common defence in that jurisdiction for “look-alike” cases like this. And given the decision of the English Court, it seems that the plaintiff made the right choice. In fact, I’ve read comments from English colleagues who highlight this judgment precisely for the strategy I’m referring to.
Many of the legal reasonings in this ruling reminds me concepts of unfair competition law than trademark law (the Decision is not based on the confusion of the consumers). However, the reality is that the Court found that ALDI infringed the cider’s registered trademark.
Sometimes entrepreneurs decide not to protect the overall image of their products through trademark registration, considering that protecting the wordmark is enough. In light of the limited scope of unfair competition law that the Spanish Courts apply, decisions like this one (even though it comes from a different jurisdiction), let me to advise to follow the example of the plaintiff and register the trademark to better protect its business interests and assets in Spain. And even more so if it is considered that the presentation has or may have a special distinctiveness. Surely you know which brand of energy drink this refers to:
Moreover, according to a recent report published jointly by the EUIPO and the EPO (https://www.euipo.europa.eu/en/publications/firm-level-analysis-report-january-2025), it has been shown that companies that register more achieve higher revenue; specifically, 23.8% more revenue per employee. The data also reveals that these companies tend to pay their employees higher wages, are, on average, 22% higher.
Get protection and greater revenue for your company. What else?
Fernando Ortega
Lawyer
