The retailer, who said it was one of the first to introduce glitter gin globes to the UK market, is taking Aldi to court for selling its own version of the festive drink, branded “The Infusionist”.
M&S filed papers at the High Court on 3 December alleging that Aldi’s version copies the M&S Light-Up Gin and has been available for sale since early November.
The documents said that Aldi’s gin “constitute designs which do not produce on the informed user a different overall impression to the M&S designs”.
An “informed user” was defined as a “member of the general public who is interested in purchasing liqueur during the Christmas period”.
“The Infusionist” gins are available in clementine and blackberry flavours and are £6 cheaper than the M&S Light-Up Gins and come in identical bell-shaped bottles that are illuminated from below, with edible gold flakes floating in the liquid.
M&S is seeking an injunction to restrain the discount retailer from infringing its designs, requiring it to surrender or destroy its stock, and pay damages plus costs.
Aldi has already rejected requests to stop selling the products.
An M&S spokesperson said the retailer knew “the true value and cost of innovation”, adding: “We will always seek to protect our reputation for freshness, quality, innovation and value and protect our customers from obvious copies.”
Richard Worthington, partner and registered designs specialist at European intellectual property firm, Withers & Rogers, said it is not yet clear which way the High Court will decide.
“For M&S this is understandably frustrating as it has invested significant resources in the development of a product, which it hoped would sell well over the festive season, only to find a discount retailer is selling something that looks pretty similar at a significantly cheaper price,” he said.
“The decision by M&S to secure registered designs before bringing its product to market was a wise move. UK and EU registered designs are relatively quick and cheap to obtain and provide robust protection for a product’s aesthetic features.
“In this case, the registered designs owned by M&S protect features such as the bell-shaped bottle and the use of gold flakes in the liquid to emulate snowflakes, which are key features of the Aldi liqueur bottles. The protected M&S designs also include a variety of wintery scenes printed on the bottle.
“We will have to wait and see whether this protection and the evidence of alleged infringement supplied to the court, is sufficient to block Aldi from selling its rival product.”
Worthington added: “In the meantime of course, Aldi will continue to sell its product and presumably benefit from the fact that publicity of the case is promoting it as both similar in appearance and cheaper.”
The dispute comes after M&S alleged that Aldi had infringed on its trademarked Colin the Caterpillar chocolate cake design earlier this year.
Aldi’s Cuthbert the Caterpillar cake was accused of being a direct copy of the cake M&S has been selling since the early 1990s. The case is ongoing.
The budget supermarket responded to the row over chocolate cake by teasing M&S over social media, with the hashtag #FreeCuthbert.
It also included a brief cameo of Cuthbert being led away by policemen in its 2021 Christmas advert.
The Independent has contacted M&S and Aldi for comment.
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