Tesco loses to Lidl in trade mark infringement case

The High Court last year agreed with Lidl’s argument that the Clubcard Prices logo led to a “perception of price matching by Tesco to Lidl”, upholding the discounter’s claims for trade mark infringement, passing off and copyright infringement.

In yesterday’s ruling, the Court of Appeal upheld the findings on trade mark infringement and passing off, while allowing Tesco’s appeal in respect of the copyright infringement claim.

Notably, the appeal judges said they would not necessarily have reached the same conclusion as the High Court, but that there was no legal basis for overturning the findings of fact.

Lord Justice Lewison wrote: “It is not open to us simply to substitute our own evaluation. The question is whether the judge’s finding was rationally insupportable… I do not think that we can say that it was.”

He added: “The upshot is that despite Tesco’s wish to differentiate itself from Lidl and to promote the value of its own very distinctive brand, it has found itself liable for trade mark infringement and passing off.”

A spokesperson for Lidl said: “Over the last three years, Tesco has been using its Clubcard logo to deceive many customers into believing that Tesco was price matching against Lidl or was able to offer the same great value as us.

“We asked Tesco to change their Clubcard logo, but they refused, making it necessary to bring this case. Having seen the evidence, the court has now ruled that Tesco’s Clubcard logo was copied from Lidl’s logo, and it infringes Lidl’s trademark rights and copyright.

“This infringement allowed Tesco to take unfair advantage of our longstanding reputation for great value, misleading their customers at a time when they should have been supporting them. We are pleased that the court has agreed with us and that it will now order Tesco to stop using the Clubcard logo.”

A spokesperson for Tesco said: “We are surprised and disappointed by the decision today in relation to the claim brought by Lidl against our Clubcard Prices logo.

“Clubcard Prices has always been about offering great value to our Clubcard customers, across thousands of products, as part of our commitment to keeping the cost of the weekly shop as affordable as possible. Nothing in today’s decision changes that.

“This claim brought by Lidl was just about the colour and shape of the Clubcard Prices logo. The judge’s ruling concluded that there was no deliberate intent on Tesco’s part to copy Lidl’s trademark.”