Every logo helps…until it doesn’t

Following a long-awaited Court of Appeal decision, Tesco has revealed that it will change its Clubcard branding.

Brand identity is king, so it is interesting to see the impact a seemingly innocent similarity in branding can have on a business and how unpredictable litigation can be.

Last month, the Court of Appeal upheld a High Court decision that Tesco had infringed Lidl’s trademark by using blue and yellow in its Clubcard logo and taking unfair advantage of Lidl’s reputation. This has forced Tesco to change its branding.

Lidl’s win sparked debate, with commentators saying it was unbelievable that someone would get confused between the two supermarkets and memes emerging mocking the idea. But what is more interesting is that the Court of Appeal judges seemed to share that disbelief, with much of the written ruling focused on why they didn’t think Lidl should have won.

Despite this, the judges could not change the decision, as an appeal court can’t change a lower court’s factual conclusions unless they are “rationally insupportable”. In this case, a survey had shown early (albeit isolated) evidence that the Clubcard logo could be associated with Lidl, so the first judge’s conclusions had some grounding and could not be challenged.

Nevertheless, this shows how unpredictable litigation can be and how important it is to avoid reaching a stage where just one person’s interpretation can tip the balance.

As this case shows, carefully evaluating the risks at the right time can save millions of pounds and years of litigation.

If you’re unsure whether your great idea could result in significant losses and TikTok memes, get in touch with our specialist Intellectual Property lawyers, Catherine Woodward and Stephen McVey.