Lidl v Tesco: Clubcard Prices logo infringed Lidl’s trademark, but wasn’t copyright theft

What happened

From September 2020, Tesco promoted its Clubcard Prices discount scheme using a yellow circle on a blue square, the CCP Signs. Lidl said this closely resembled its own long standing yellow circle on blue square logo and sued for trademark infringement, passing off, and copyright infringement. Tesco counterclaimed that one version of Lidl's logo, registered without the word LIDL on it, was invalid because Lidl had registered it in bad faith, purely as a defensive weapon it never intended to use as filed. The case reached the Court of Appeal after Tesco appealed the earlier findings against it.

What did the court decide in Lidl Great Britain v Tesco Stores?

The Court of Appeal dismissed Tesco's appeal on trademark infringement and passing off. It held the trial judge was entitled to find, based on consumer comments, witness evidence and an internal Tesco survey, that a substantial number of shoppers believed the CCP Signs meant Tesco's prices matched Lidl's, which was enough to show unfair advantage and damage to Lidl's distinctive logo, and to support passing off. On copyright, the court disagreed with the High Court. What made Lidl's logo original was specific detail, such as the particular shade of blue and the spacing, and Tesco's signs hadn't copied that detail, so there was no copyright infringement. The court also upheld the finding that Lidl's wordless trademark was invalid for bad faith, since Lidl couldn't explain any genuine intention to use it as registered.

What we learned from this

• What I'd take from this is that you don't need to copy someone's name or wording to infringe their trademark. Colour and shape alone persuaded the court here, because the evidence showed real shoppers drawing a false price comparison.
• If you're relying on consumer perception to prove infringement, evidence like genuine customer comments or a proper survey can carry real weight, as it did for Lidl.
• Registering a logo without any name or text on it, purely to widen your legal options, is risky if you can't show you ever meant to use it that way. Lidl's wordless mark was cancelled for exactly that reason.
• Copyright protects specific creative detail, not a general visual idea. Lidl won on trademark and passing off but lost on copyright because the shade of blue and spacing weren't copied.

Things to be aware of

The businesses involved