Lidl has made “deception” allegations against rival Tesco during a High Court fight over the use of a yellow circle logo.
The German discount chain uses a yellow circle in its main logo, and Tesco uses a yellow circle logo to promote its Clubcard scheme.
A judge began overseeing a High Court trial in London on Tuesday, and the hearing is due to end next week.
Mrs Justice Joanna Smith was told that Lidl alleged “infringement of trademark, passing off and infringement of copyright”.
Tesco has brought a counterclaim “seeking to cancel some of the trademarks in issue”.
Lawyers representing Lidl told the judge that Tesco’s actions “must involve some form of deception” which was “not accidental”.
Tesco said it was behaving fairly.
Benet Brandreth KC, the barrister leading Lidl’s legal team, said the “protection available to Lidl’s core brand” was “at the heart of this claim”.
He told the judge that the firm had registered trademarks for a logo containing the word Lidl and also a logo with no text, which was “distinctive” of its services and goods.
“Tesco’s actions must involve some form of deception,” he told the judge in a written case outline.
“It is not enough that careless or indifferent people may be led into error.”
“Lidl say that this deception is not accidental. That Tesco deliberately copied Lidl’s branding to achieve precisely the transfer of reputation for good value that is occurring.”
Hugo Cuddigan KC, leading Tesco’s legal team, said that to establish infringement Lidl would need to satisfy the judge that “creating a yellow circle involves sufficient artistic skill and labour to comprise the author’s own intellectual creation”.
He argued that Lidl had not established that.
Mr Cuddigan said Lidl had to prove damage, adding in a written argument: “That means that the customers who have been misled would otherwise have gone to Lidl to purchase the goods in issue, or that the deception causes them to take a materially disadvantageous view of Lidl.
“We are not aware of any evidence that this has happened.”
He said, in the context of “behaving fairly” towards Lidl, Tesco had “excellent basis for their belief that no significant association with Lidl would result from their adoption” of Clubcard signs.
Mr Cuddigan said the “key mark relied on by Lidl” was the registered trademark for its “well-known logo”.
He said the German company had “also procured” the registration of the background to that logo – the “wordless mark”.
“Tesco says that the wordless mark is invalid on the basis that it has never been used, it lacks distinctiveness, and each application for registered wordless marks was made in bad faith,” he added.
“It is common ground that Lidl has only used the wordless mark, if at all, by using it within the mark with text.”
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