In this blog post Jack Williams of Monckton Chambers discusses a new Court of Appeal judgment, Thatchers Cider Co Ltd v Aldi Stores Ltd [2025] EWCA Civ 5 (“Thatchers”), in which the Court decided not to depart from assimilated case law.
The power to depart
This blog has previously discussed the Court of Appeal’s and Supreme Court’s power (contained in section 6 of the EU Withdrawal Act 2018 and the European Union (Withdrawal) Act 2018 (Relevant Court) (Retained EU Case Law) Regulations 2020 (SI 2020/1525)) to depart from assimilated case law.
As also previously discussed, section 6 of the 2018 Act presently remains in its original form given that the commencement of section 6 of the Retained EU Law Act 2023 (with its amendments for the departure test) has been postponed. The Court of Appeal therefore presently has power to depart by applying the same test that the Supreme Court applies when deciding to depart from one of its own precedents or of one of the House of Lords in accordance with the Practice Statement (Judicial Precedent) [1966] 1 WLR 1234.
The (reasonably) new Labour Government has confirmed recently that section 6 of the 2018 Act is to remain in limbo. Paragraph 24 of the Assimilated Law Parliamentary Report for the period June 2024 to December 2024 (dated 23 January 2024) states:
“The previous Government made The Retained EU Law (Revocation and Reform) Act 2023 (Commencement No. 2 and Saving Provisions) Regulations 2024 on 24 May 2024. They were due to come into force on 1 October 2024 and would have commenced section 6 of the REUL Act. Section 6 introduces new tests for the UK courts to apply when departing from assimilated case law. The previous Government’s view was that these new tests would encourage UK courts to depart from assimilated case law more readily. The Secretary of State for Business and Trade decided to pause the commencement of section 6 of the REUL Act to allow time to consider this within the wider context of our work to grow the economy and reset relations with the EU and devolved governments. The Government therefore made The Retained EU Law (Revocation and Reform) Act 2023 (Commencement No. 2 and Saving Provisions) (Revocation) Regulations 2024 on 17 September 2024, to revoke the previous regulations while the matter is given further consideration. Pausing the commencement of Section 6 gives businesses greater stability. We will keep this decision under review.”
Past consideration of the power to depart
There have been two notable cases discussing the departure power found in section 6 of the 2018 Act: first, in TuneIn Inc v Warner Music UK Ltd & Anor [2021] EWCA Civ 441 (“TuneIn”), the Court decided not to depart (see here); and, second, in Industrial Cleaning v Intelligent Cleaning Equipment [2023] EWCA Civ 1451 (“Industrial Cleaning”) the Court decided to depart (see here).
Thatchers
Thatchers provides a third example. The Court of Appeal held that the High Court had erred in dismissing Thatcher’s claim against Aldi under the Trade Marks Act 1994 for an infringement of its trade mark for a particular lemon-flavoured cider. Of interest for present purposes is that, in doing so, the Court of Appeal also held, like in TuenIn, that it was not appropriate to depart from a CJEU judgment (in this case, C-487/07 L’Oreal v Bellure EU:C:2009:378).
In deciding not to depart from L’Oreal, Arnold LJ took into account the following factors:
- Parliament had not repealed or amended the domestic legislation in question since Brexit i.e. there had been no legislative suggestion that the substantive position should now be different: [145].
- The learned judge considered that it is the will of Parliament that the trade mark law of the UK should remain harmonised and that, in such circumstances, “this Court should strive for harmony with the jurisprudence of the Court of Justice, rather than adopting a divergent interpretation, unless driven to the conclusion that the Court of Justice’s interpretation of the legislation is erroneous”: [146]. Indeed, he noted that other countries outside the EU have also adopted similar provisions, and all courts charged with interpreting and applying such provisions “should be striving for harmony with each other”, especially because international harmonisation “assists UK traders to trade abroad by reducing obstacles and transaction costs due to trade marks”: [36] and [146].
- The CJEU’s judgment in question “provides a principled basis”, whereas the party seeking departure had not put forward a principled alternative: [147].
- The CJEU’s ruling was “not an isolated decision” since it “built upon a number of earlier decisions of the [CJEU]” and had been applied in “countless” decisions of the General Court and other EU and Member State institutions: [148].
- Commentary criticising the CJEU judgment in question were limited and in any event misplaced: [149]-[150].
- Departure from the CJEU judgment “would cause considerably legal uncertainty” whereas it had neither “restricted the proper development of the law or turned it in a wrong direction”. Indeed, the CJEU judgment had been applied in a number of domestic decisions: [151].
- Departure would have had ironic effects since “Thatchers would probably have a remedy for Aldi’s use of the Sign under many systems of law, including German law, in unfair competition law even apart from trade mark law”: [152]
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