Trademark Infringement and Passing Off Dispute: Lidl vs. Tesco Case Resolved by Court of Appeal

Citation: [2024] EWCA Civ 262
Judgment on


The case of Lidl Great Britain Limited & Anor v Tesco Stores Limited & Anor [2024] EWCA Civ 262 presents a nuanced legal battle focusing on supermarket logos and the implications of their use in trade. This intricate dispute involves issues of trade mark infringement under section 10(3) of the Trade Marks Act 1994, passing off, and copyright infringement. The courts were tasked with interpreting whether certain uses of promotional signage could mislead consumers and infringe upon the distinctive character and reputation of a competitor’s trademark.

Key Facts

Lidl alleged that Tesco’s use of the “Clubcard Prices” (CCP) signs, featuring a yellow circle on a blue background, infringed upon its registered trademarks, which consist of a similar design, involved passing off and infringed copyright. Tesco’s CCP signs promoted a campaign where Clubcard holders would receive goods at lower prices. Lidl’s claim was largely based on the argument that Tesco’s signage suggested a “price match” with Lidl, conveying that Tesco’s prices were equivalent to or lower than Lidl’s, which Lidl claimed was not the case.

The primary legal issues revolved around whether Tesco’s use of the CCP signs took unfair advantage of, or was detrimental to the distinctive character or reputation of Lidl’s trademarks without due cause, and whether Tesco’s actions had caused a misrepresentation to the public in terms of passing off. Additionally, Lidl appealed against the High Court’s finding that its wordless trademark registrations were invalid due to bad faith. Tesco counter-argued, challenging Lidl’s claims on multiple fronts.

The court’s analysis touched upon several legal principles:

  • Trade Mark Infringement: The case centered on section 10(3) of the Trade Marks Act 1994, which provides extended protection to trademarks with a reputation. The court had to ascertain whether Tesco’s CCP signs were similar enough to Lidl’s trademarks, and whether this use linked Tesco to Lidl in the minds of average consumers. Furthermore, the court assessed whether such an association would be untoward or inflict damage upon Lidl’s trademark distinctiveness (Intel v CPM [2008] and L’Oréal v Bellure [2009]).

  • Passing Off: The courts reiterated the classic trinity of goodwill, misrepresentation, and damage as essential elements for a successful passing off claim. The assessment focused on whether the public was being misled into believing that Tesco’s products, offered under the CCP signs, were comparable in quality and price to Lidl’s products, or that Tesco had “price matched” with Lidl (Reckitt & Colman v Borden [1990] and Erven Warnink v J. Townend & Sons [1979]).

  • Bad Faith in Trade Mark Registration: Lidl faced the legal question of whether the wordless mark registrations were made in bad faith under sections 3(6) and 47(1) of the 1994 Act. This questioned if Lidl’s applications were a strategic move to unfairly extend legal protection without an intention to use the trade mark (ChD guidance in Lidl v Tesco I [2022]).

  • Copyright Infringement: Lastly, the case addressed whether copyright in the artistic work of Lidl’s logo existed and if Tesco’s signs reproduced a substantial part of this work. The court applied the “author’s own intellectual creation” test to determine originality (Infopaq International A/S v Danske Dagblades Forening [2009]).


The Court of Appeal upheld the trial judge’s findings on trade mark infringement and passing off, dismissing Tesco’s appeal. The judge’s conclusions were supported by consumer, expert, and survey evidence, showcasing that a link had been drawn between Tesco’s CCP signs and Lidl’s marks, and that a non-trivial number of consumers were misled based on the price matching allegation.

The court allowed Tesco’s appeal on copyright infringement, reversing the trial judge’s decision. It was held that even if Lidl’s logo was original enough to attract copyright, Tesco hadn’t copied any element that was original to Lidl’s author(s) that resulted in the work.

Lidl’s appeal on the bad faith claim of the wordless mark registrations was dismissed. The court found no evidence to suggest Lidl had any intention to use the wordless marks apart from as a legal weapon, hence confirming the judge’s findings on bad faith applications.


This case underscores the complexities involved in trade mark infringement within the retail sector and illustrates the careful balances drawn by the courts between protecting brand identity and preventing anti-competitive practices. The legal discourse articulates the intricate analysis required in considering the parallel concepts of unfair advantage, detrimental impact on trademark distinctiveness, and the notion of