Tesco loses latest court battle with Lidl over Clubcard logo

Following the on-going legal battle between discount retailer Lidl and supermarket giant Tesco, the Court of Appeal has confirmed that Tesco will now have to change its Clubcard logo.

Back in April 2023, New Food reported that The High Court announced its verdict on the trademark battle between Lidl and Tesco, which ruled that Lidl’s logo, a yellow circle on a square blue background, was infringed on by Tesco with its Clubcard logo.

The High Court judgement made last year said that “the evidence supports the proposition that a substantial number of consumers have been deceived.”

Today, Tesco’s appeal was dismissed by the court, although the judges expressed some surprise that the result went in Lidl’s favour in the first place. Lord Justice Arnold said that “at first sight, the judge’s finding that a substantial number of consumers would be misled by the CCP Signs into thinking that Tesco’s Clubcard Prices were the same as or lower than Lidl’s prices for equivalent goods is a somewhat surprising one” yet agreed that the High Court judge was “entitled” to make that decision.

Lord Justice Lewison also said that he found the judges “finding of fact surprising” and that “although I doubt whether I would have come to that conclusion, that is not the question on appeal” and dismissed the appeal.

Tesco told the BBC in a statement that it would change the colour and shape of its Clubcard Prices logo.

“We are disappointed with the judgement relating to the colour and shape of the Clubcard Prices logo but would like to reassure customers that it will in no way impact our Clubcard Prices programme.

“Clubcard Prices, irrespective of its logo, will continue to play a central role in rewarding our Clubcard members with thousands of deals every week.”

Richard May, an Intellectual Property Partner at Osborne Clarke, told New Food that “in Tesco’s own estimation, a re-brand could cost them around £7.8 million.”

“The next and final appeal is to the Supreme Court, but Tesco will need to seek specific permission from the Supreme Court’s Appeals Committee for that and it’s unlikely that will be granted as there’s no a major point of legal principle at stake.  This case has simply turned on it specific facts.

“The general consensus after the first instance decision is that Lidl were very fortunate to succeed and that seems to be the subtext of the Court of Appeal’s decision.  The Court of Appeal has basically said “if we could find a way of avoiding this result, we would”.

“However, Court of Appeal is only dealing with whether the first instance decision is “rationally insupportable” and they found that it wasn’t, largely because Lidl’s evidence was impressive.  Overall, the evidence backed up Lidl’s claim that enough consumers think the Clubcard logo conveys a price-matching message, ie Tesco’s Clubcard prices were either lower or equal to Lidl’s prices.  Since this was a false message, this took unfair advantage of Lidl’s logo and Tesco lost overall.”