Lidl and Tesco square up for another round in court

A three-day hearing over the UK rivals’ yellow and blue signs left plenty to ponder for Justices and brand owners alike. Anneka Dalton of Taylor Wessing examines the takeaways.

Last year, Justice Joanna Smith in the UK High Court delivered a positive finding of trademark and copyright infringement against Tesco for its use of a sign bearing a yellow circle against a blue square for its Clubcard Prices scheme.

Lidl argued (and the court agreed) that the sign infringed Lidl's own yellow roundel against a blue square.

In the June 2023 decision, the court also found that Tesco had passed off its goods as being equivalent in value to Lidl's. 

Last week, the case was back in The Court of Appeal of England and Wales.

During the three-day hearing, Justices Kim Lewison, Richard Arnold and Colin Birss heard Tesco's appeal of the trial judge's decision, as well as Lidl's own cross-appeal of the High Court’s finding of invalidity (based on bad faith) in relation to Lidl's so-called ‘wordless mark’.

What was this case about?

Lidl had trademark registrations for a yellow roundel, with a red outline, against a blue square (the ‘wordless mark’) as well as the same sign overlaid with the word Lidl (the ‘mark with text’). Lidl has never used the wordless mark by itself as a standalone sign; it has always featured the 'LIDL' word element (as below).