Courts are increasingly focusing not just on visual similarity, but on how brands feel to consumers. They're moving beyond surface comparisons and considering whether a product has been deliberately crafted to tap into the trust, recognition and emotional connection associated with an established brand. In short, brand perception is no longer just a marketing concern but a legal one.
Redefining brand boundaries
At home and abroad, Aldi has found itself on the losing side of three major brand disputes in three different countries. In the UK, the Court of Appeal found that its Taurus Cloudy Lemon Cider had taken unfair advantage of Thatchers’ reputation. In Switzerland, Lindt successfully challenged Aldi’s chocolate balls for being too close to its signature Lindor range. And in Australia, snack brand Little Bellies won a landmark case over artistic packaging, with the court condemning Aldi’s actions as flagrant.
None of these cases turned on obvious copying but rather on attempts to capture the feel of an established brand – to evoke the in-built memory of the brand. This is where Courts are increasingly turning their attention. It seems judges are moving away from narrow questions of design towards a more realistic and holistic view of how consumers actually experience brands – shaped by trust, emotion and familiarity.
In the Thatchers case, the court was not asked to decide whether consumers were genuinely confused. Instead, the focus was on Aldi’s intent to position its product alongside the values and reputation and goodwill Thatchers had worked hard to build. The associations with quality, heritage and local provenance were not accidental – and the Court concluded that this kind of brand evocation amounted to taking unfair advantage.
That conclusion reflects a wider shift. Reputation, once viewed as intangible or abstract, is beginning to carry legal weight. And that gives brand owners more ground to challenge imitation, even when the similarities are more emotional or psychological rather than visual.
So what does this mean for the food and drink industry?
For brand owners, it means treating perception as more than a marketing issue. It needs to be part of legal strategy as well. Businesses should take a closer look at what makes their brand distinctive in the eyes of consumers and think about how those elements can be documented, registered and defended, if challenged.
For retailers and manufacturers, the margin for imitation is shrinking. It is no longer enough to stay just on the right side of a visual or phonetic comparison. If a product has been created with the aim of echoing another brand’s identity, there is now a real risk that a Court may call that out.
From cider in the UK to chocolate in Switzerland to snacks in Australia, Courts are increasingly recognising that the emotional connection between consumers and brands is not just a marketing asset but a legal one. What once perhaps felt too abstract to enforce is now being treated as a central part of brand value.
This shift means brand protection is no longer just about names and logos. It is about defending the trust and recognition that a brand has earned over time. Businesses that understand this and adapt their strategies accordingly will be far better placed to protect their market position than those still relying on historic assumptions.
This article was originally published in Food Manufacture.
