In the crowded aisles of modern supermarkets, packaging is more than a vessel for products—it’s a declaration of identity. For most companies, the design and aesthetics of their packaging are central to their brand image and consumer experience. Packaging has evolved into a cornerstone of brand strategy, and its role in defining a company’s identity cannot be overstated. Recent legal battles in the United Kingdom and Australia involving Thatchers Cider and Little Bellies highlight the growing importance of protecting packaging through intellectual property law.
Packaging is the first impression that lasts
Packaging is often the first point of contact a consumer has with a brand, and its subtle yet powerful influence has the potential to shape perceptions and drive decisions. It is the first brushstroke of the brand’s story, a tactile and visual introduction that precedes the product itself. When a consumer reaches for a product on a shelf, their choice is often guided not by the name or price but by the instinctive allure of its design. This immediate attraction is not a random occurrence—it is the product of a carefully curated brand identity.
The idea that people judge books by their covers is often mocked but it’s a truth we live by, especially in retail. A book’s cover isn’t just decorative, it’s a promise of what lies within. So too with packaging. The design isn’t a mere afterthought, it’s a declaration of the product’s value, a visual shorthand for something consumed in an instant. Bold colours, intricate patterns, and minimalist designs are all calculated choices meant to stir something in the consumer that goes beyond logic. It’s not just decoration: it’s a signal, a marker of what’s inside, and what the brand promises. Some packaging whispers sophistication, while others shout playfulness. It’s the first impression—the kind that often sticks, because it’s felt rather than thought about.
We know that design can influence decisions in a flash. A glance, a quick recognition, and suddenly a decision is made. In a world where shelves are lined with competing options, packaging isn’t just an accessory—it’s a differentiator. It’s the silent persuader, standing between the product and the consumer, suggesting the right choice without uttering a word.
This is why packaging cannot be seen as mere functionality. In fact, it is often the critical asset, the first and perhaps most powerful tool in a brand’s strategy. It’s the interface that bridges a brand’s promise and the consumer’s expectations. And if packaging holds that much power in driving consumer choice—shaping perceptions, guiding decisions, and defining identities—it stands to reason that protecting it, in all its forms, becomes essential.
The UK Thatchers Cider case: trade mark protection for packaging design
Thatchers Cider, a well-known UK brand, has long understood that packaging is not simply a functional necessity but a key part of its overall brand identity. Thatchers has invested heavily in its packaging, knowing that it serves as the first introduction to the product—shaping consumer expectations and guiding decisions even before the drink is opened. Their packaging, which evokes a sense of heritage and craftsmanship, is crafted not only to represent the brand’s core values but also to stand out in a saturated market.
Thatchers’ use of traditional design elements, like the iconic green and gold colour palette, typography, and intricate orchard illustrations, is no accident. These visual cues reflect the company’s heritage and authenticity, reinforcing the connection between the product and the brand’s narrative. In an industry where branding is king, Thatchers recognised early on that their packaging was an irreplaceable asset—something that could not only define their presence in a crowded market but also serve as a valuable intellectual property asset.
Understanding that packaging could be the silent persuader on the store shelf, Thatchers took proactive steps to protect this critical asset through intellectual property law, by registering its lemon cider packaging as a trade mark.
The company’s decision to secure trade mark protection for its packaging design wasn’t merely a defensive move, it was a strategic effort to ensure that their visual identity would be recognised and shielded from imitation. This foresight proved crucial when, in 2021, Thatchers found itself embroiled in a legal dispute with Aldi, a major German supermarket chain.
Aldi had launched a cider under its own brand featuring strikingly similar packaging elements to Thatchers. The similarities in design were not just limited to the green and gold palette but also included the orchard illustrations and typography—a deliberate design choice that Thatchers had carefully honed over the years to convey a sense of tradition and authenticity.
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| Thatcher’s registered trade mark | Aldi’s competing product |
Thatchers argued that Aldi’s product could cause confusion among consumers, who might mistakenly believe they were purchasing Thatchers’ cider when, in fact, it was Aldi’s cheaper alternative. This risk of confusion threatened both their brand equity and the consumer trust they had worked so hard to build.
In a landmark ruling, the UK Court of Appeal sided with Thatchers, emphasising that the overall combination of design elements, rather than isolated features, was key to the case. The court found that the similarities between the packaging were substantial enough to potentially confuse consumers, and that Aldi’s cider could be seen as an attempt to capitalise on Thatchers’ established reputation.
The ruling was significant for several reasons. It underscored the importance of packaging as a trade mark in its own right. More than just a container, packaging—when it carries enough distinctive visual elements—can be an asset that is worth protecting legally. In this case, Thatchers didn’t just protect a logo or a name, they safeguarded the essence of their brand’s identity as communicated through packaging.
Another pivotal factor in the decision was Thatchers’ trade mark registration for its packaging design, which provided a strong legal foundation for the case. This registration allowed Thatchers to bypass the more difficult and resource-intensive process of proving acquired distinctiveness through extensive market use, a subjective hurdle that would have required substantial evidence that the design had become synonymous with the Thatchers brand in the minds of consumers. Without this registration, the burden of proof would have been much higher, necessitating that Thatchers demonstrate how its design had developed a secondary meaning in the market.
Would there have been a different outcome in Australia or New Zealand?
Had this case been heard in Australia or New Zealand, the outcome could have been influenced by the different emphasis placed on consumer protection laws that are lacking in the UK, such as Australian Consumer Law (ACL) and New Zealand’s Fair Trading Act 1986. These statutes allow action to be taken against “misleading or deceptive” conduct, focusing on consumer perception without requiring trade mark registration.
While trade mark registration was crucial for Thatchers’ success in the UK, these broader legal frameworks in Australia and New Zealand would have offered Thatchers alternative and arguably stronger avenues to challenge Aldi’s product protections if the same battle were fought in Australasia. Conversely, Australasian courts may have been less likely to find that the Aldi packaging on the front and rear of its cider can and on its cardboard packaging was a “sign”, when assessing allegations of infringement of Thatcher’s trade mark registration.
The Australian Little Bellies case: copyright infringement in packaging design
In Australia, in the absence of any trade mark protection in its packaging design, Little Bellies, a small but growing business specialising in organic snacks for children, brought a copyright infringement claim against Aldi. Little Bellies argued that Aldi’s private-label Mamia Baby Puffs packaging too closely resembled the design of its own product packaging, which featured a playful, child-friendly aesthetic and whimsical illustrations.
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| Little Bellies’ packaging | Aldi’s packaging |
The Federal Court of Australia found in favour of Little Bellies, ruling that Aldi’s packaging was sufficiently similar to the original to potentially confuse consumers. The court identified numerous similarities: both packages featured a small, oval-shaped cartoon character with a large, light-coloured belly, presented against a white background. The layout was remarkably similar, with childlike fonts, a two-column design, and photographic images of the product and ingredients arranged in almost identical vertical compositions. Even specific details, such as a prominently displayed number in the upper-right corner, were replicated.
The case underscored the importance of copyright protection for packaging, particularly in terms of the artistic elements that contribute to a product’s identity. The design of Little Bellies’ packaging—bright, engaging, and distinct—was an integral part of its brand, and the court recognised that imitation could harm its market position.
However, the Little Bellies case also illustrated the difficulty in proving copyright infringement. Unlike trade mark law, which focuses on consumer confusion, copyright requires clear evidence of copying the original work, and in this case, evidence was tendered that Aldi had explicitly instructed its design team to use Little Bellies’ packaging as a benchmark, showing a deliberate attempt to mimic the smaller company’s design.
Trade mark infringement is generally considered more straightforward to prove, as it relies on the perception of similarity and the likelihood of confusion rather than the intricate details of creation. However, for smaller businesses without registered trade marks, copyright can serve as a vital tool, particularly when creative designs are central to their identity.
Protecting the silent persuader
The cases of Thatchers Cider and Little Bellies reveal the high stakes of packaging in today’s market. Packaging is more than an aesthetic choice—it’s a declaration of brand identity, a competitive edge, and a silent contract with consumers.
These cases demonstrate the vital role intellectual property plays in shielding these assets from imitation and dilution. As brands continue to invest in distinctive designs to stand out in crowded markets, the question isn’t whether packaging deserves protection but how businesses can best fortify their creative efforts. In an age where first impressions drive loyalty, protecting packaging isn’t just a legal strategy—it’s a business imperative.