A new trainee has joined our department and we were discussing the issue of ‘lookalike brands’ and how that works with registered trade mark rights and passing off. The lookalikes are never identical marks and so are deemed similar thereby requiring confusion in order to claim infringement. The court has said repeatedly, that if the two products are next to each other on the shelf then it is often the case that whilst the customer can see they are certainly similar, and one is almost certainly a ‘rip off’ copy, the fact that the customer can identify this (either through changes in packaging, often pricing and a different name) and chooses one product over the other means that there is no confusion.
This issue has reared its fishy head again in the case of Icelandic Seachill (owners of The Saucy Fish Co.-v- Aldi where Seachill are objecting to Aldi’s similar packaging. Interestingly, Aldi consented to Seachill’s injunction, we assume in order to achieve a more favourable costs recovery if they are ultimately successful in defending the claim, but it means that the fishy products will be off Aldi’s shelves pending judgment.
It appears that Aldi do not stock The Saucy Fish Co products and so the issue of confusion discussed above is different in this case. Customers are not presented with the original product at the same time and so there is no opportunity for comparison and enlightenment. The customer will only see the Aldi equivalent and accordingly, the greater likelihood of confusion (including a likelihood of association).
It will be interesting to see how the failure to source (sauce!) both products, thereby magnifying the chance of confusion will impact on the eventual outcome. I have to say, having advised on ‘lookalikes’ for many years, this is not one which caused a sharp intake of breath! I wonder whether, had Aldi stocked the Seachill products on the same shelf, they would even be in court…