Retail giant Marks & Spencer is seeking remedial costs from Aldi after it claims the budget supermarket infringed the intellectual property of its gold flake gin liqueur with an integrated light feature.
The day-long hearing, before His Honour Judge Hacon sitting in the Chancery Division, centred around ‘festively decorated’ bottles which have a silhouette design, gold flakes within the gin and a light up feature in the base of the bottle.
M&S’s registered designs include the shape and contours of the bottle and cork stopper, the integrated light feature, the gold leaf flakes, a winter forest silhouette and the positioning of that graphic on the bottle, the court heard.
Aldi claims the key points of difference are the prominent branding on its product as well as the woodland silhouette coming in two colours.
The court heard that Aldi’s bottle is ‘bright and busy’ while M&S’ design is more subdued with more empty space.
Andrew Maxwell, buying director at Aldi, told the court that the pandemic had restricted the availability of products and cost restraints limited the options available.
Aldi claims that, although its designer had ‘considerable design freedom’ on which images could be placed on the bottle, they were restricted when it came to the gold flakes, the location of a light fitting and the printable area of the bottle.
Thomas Elias, for Aldi, said: ‘These bottles spend most of their life on the shelf undisturbed and unlit. It is an important factor of these product designs that it is not simply the lights, you’re going to interact with…[the bottle will be] sitting on your shelf for weeks at a time over Christmas.’
Hacon, who had both M&S’ product and the disputed Aldi bottle to hand, lit both bottles in court. He said: ‘When guests come that is precisely what you do, you light it up, show how fantastic it looks before you pour it out. It is not irrelevant.’
Daniel Selmi, for M&S, said: ‘[Andrew Maxwell, buying director at Aldi] made the point [of limited options available] but there were a huge variety of bottle shapes.’
He added: ‘That is a design choice. If you can commission lots of different shapes and you choose not to, you choose one like ours…you can include white flakes, silver flakes, large gold flakes, small bits of gold. Of course, most bottles do not have anything. It is all a design choice.’
Judgment was reserved until the new year.
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