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Artistic licence?

Pablo Picasso famously said,

“Some painters turn the sun into a yellow spot, others turn a yellow spot into the sun”

Tesco and Lidl, however, have managed to turn a yellow spot into a bitter High Court battle.

To paint the picture, Lidl’s logo features a yellow circle edged in red on a square blue background, and has been in use in the United Kingdom since the 1980s. Two versions of this logo have been registered as UK trade marks. One version contains the word ‘Lidl’ in the middle of the circle, and the other version is comprised of the aforementioned shapes and colours, but with no text. This wordless version has been registered as a UK trade mark since 1995, but has never been used commercially.

Tesco usually has its marketing and promotional activities down to a fine art, and since September 2020, it has used a sign consisting of a yellow circle on a square blue background, with the words ‘CLUBCARD PRICES’ within the yellow circle.

It was also Picasso who said that “good artists copy, great artists steal” and this quotation could well have inspired Lidl to commence proceedings, alleging that Tesco’s use of the Clubcard sign is unlawful.

Intellectual property laws may seem pretty abstract to most, but lawyers acting for Lidl are confident that Tesco’s Clubcard promotional signs amount to infringement of a trademark, passing off, and infringement of copyright.

Lidl alleges that Tesco’s use of the Tesco Clubcard prices sign is intended to, and does, cause members of the public to call to mind Lidl’s business, suggesting that the prices of goods offered by Tesco for sale under or in connection with the sign were offered at the same prices, or lower prices, than could be obtained for the same or equivalent goods in Lidl stores. Tesco has made a counter claim that Lidl has registered the wordless trade mark in bad faith, and Tesco now seeks to invalidate that trade mark on the grounds of non-use. It would be interesting to canvass the opinion of shoppers.

With the costs incurred by the parties so far amounting to many millions, the losing party will no doubt enter a blue period of its own.

If you want to protect your trade mark and avoid a costly intellectual property dispute, please contact Rhys ap Gwent at Morgan LaRoche.