M&S and Aldi are facing off in court over a celebratory gin bottle fight

Supermarket chain Aldi has copied the look of Marks & Spencer’s festive “Instagrammable” gin bottles, the British retailer has argued in the High Court.

M&S has sued its German rival for allegedly infringing the design of “luminous gin bottles” sold over Christmas 2020, whose “wow factor” it believes “got the nation talking,” the court said.

The dispute follows a now-settled copyright dispute between the two retailers that accused M&S Aldi of copying Colin the Caterpillar’s cake.

M&S’ current legal challenge, first filed last December, alleges that Aldi’s Gold Flake Blackberry and clementine gin liqueurs are “very similar” to products bearing their patented design.

M&S lawyers claim there is a “direct” infringement of its patented designs, with Aldi and its own products producing “the same overall impression” on shoppers.

But Aldi, which denies infringement, maintains that design features used by its competitor were “common” and “widely known throughout the sector”.

Examples of the products at the center of the case were brought into a one-day trial at a specialist intellectual property court in London on Friday, to be shown to Judge Richard Haakon.

Marks & Spencer’s illuminated bottle (left) next to an Aldi bottle (Stobbs IP Limited/PA)

The bottles have buttons on their base to illuminate the contents.

Daniel Selmi, representing M&S, said in written arguments that the M&S and Aldi designs “have the same feature of lighting integrated into the base of the bottle, the shape and features of the bottle and the corkscrew are the same, both have gold leaf foil, displayed hanging, and both have a graphic design of a winter forest silhouette “.

The lawyer added: “It is clear that they produce the same general impression of an informed user.

“This is not surprising because Aldi wanted their product to have the ‘look and feel’ of an M&S, and they succeeded.”

Selmy said M&S’s designs were part of a “Gin Globes project” that saw the products first launched in 2019.

He said the inclusion of the lighting feature was an “eye-catching new design choice” for 2020, with the idea of ​​incorporating it into the base of the bottle coming to a product developer who saw lighting shops on London’s Kensington High Street.

Selmi said the 2020 products were “aiming to be market leaders and truly first for consumers” and were “designed to be interacted with.”

The lawyer said M&S believes the design is “very Instagram-worthy” and built on the popularity of the “gin boom”.

He said Aldi did not show that any of the design features were prevalent or popular.

“The bottom line is that Aldi is in violation,” he concluded.

M&S is seeking a Supreme Court injunction restraining Aldi from further alleged infringement of its protected designs, an order for Aldi to destroy or turn over anything that constitutes a possible infringement of the injunction, and an investigation of damages arising from the alleged infringement.

Aldi’s Thomas Elias said in written notes that it had been advertising and selling its challenged products since October 2021 since the beginning of November last year.

He said that the designs for M&S products “do not show … an integrated light source as claimed”, arguing that the images “show light coming from the bottom of the bottles, which indicates that the light source in the images is external to the designs themselves”.

“The shape and features of the bottle and cork were familiar,” Mr. Elias added.

By the time M&S designs were registered in April 2021, the lawyer said, “both the integrated lighting feature and gold foil inserts were widely known across the sector.”

He added, “They will no longer have the ‘wow’ factor that would single out any of them as a particularly important design feature.”

He also said that M&S ​​designs are “unbranded”, while Aldi’s bottles are “prominently branded with the words ‘The Infusionist Small Batch'”.

The hearing concluded on Friday and the verdict is due at a later date.

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