Trade Mark~ Act 1995 and Trade Marks Regulations

IN TIIE MATTER OF trade mark application

nos. 1585399 and 1585400 for the Trade

Marks ALDI and A-Logo, in the name of

ALDI Foods Pty Ltd

DECLARATION

I, Caroline MacPhail, of 1 Sargents Road, Minchinbury, New South Wales, 2770, do

declare as follows:

BACKGROUND

I . I am a Group Buying Director of ALDI Stores (A Limited Partnership) of I

Sargents Road, Minchinbury, New South Wales, 2770, Australia ("ALDI Stores").

2. I have been employed by ALDI Stores since 12 November 2001.

3. ALDI Stores is a limited partnership comprising the companies ALDI Pty Ltd

(ACN 086 493 950) and ALDI Foods Pty Ltd (ACN 086210139) as the partners.

4. I am authorised to make this declaration on behalf of ALDI Stores and ALDI Foods

Pty Ltd.

5. I make this declaration based upon: my own knowledge, infonnation ascertained

from the files and records of ALDI Stores and ALDI Foods Pty Ltd to which I have

access; published information and information provided to me which I believe to be

true and correct; and from sources as otherwise indicated herein.

6. I say that this declaration is an exempt document under section 43 of the Freedom

of Information Act 1982 (Cth), insofar as it relates to monetary information and the

business affairs of ALDI Stores or ALDI Foods Pty Ltd.

7 In particular, I state that the information in paragraphs 24, 25 and 26 of this

declaration is confidential information of a commercially sensitive nature.

THE ALDI GROUP

8. ALDI Stores is part of the international group of ALDI businesses (hereinafter

referred to collectively as the "ALDI group"). The ALDI group is an international

operator of supermarkets and grocery stores. More recently, the ALDI group bas

expanded its range of operations to include online services.

9. The ALDI group had its origins more than sixty years ago, when the first ALDI

store was opened in 1948 in the town of Essen in Germany.

10. The ALDI group now has over 10,000 ALDI stores in operation internationally.

The annual sales revenue of the ALDI group is in the order of tens of billions of

dollars.

11. ALDI is today among the top ten grocery retailers in the world and is recognized as

an international leader in the international grocery retailing industry.

12. The ALDI group operates as two divisions: ALDI North and ALDI South. ALDI

North's area of responsibility includes northern Germany, Belgium, Denmark,

France, Luxembourg, the Netherlands, Poland, Portugal and Spain. ALDI South's

area of responsibility includes southern Germany, Austria, the United Kingdom,

Ireland, Hungary, Slovenia, Switzerland, the United States of America, Australia

and New Zealand.

13 . On 19 April 1999, ALDI Stores was registered as a limited partnership in New

South Wales, with its head office situated in Sydney. ALDI Stores opened its first

2

store in Australia in January 2001 and has since opened many more stores as part of

its ongoing rapid and nationwide expansion program.

14. ALDI Stores currently has more than 340 stores in Australia trading under the

ALDI brand, and employs thousands of staff.

15. ALDI Stores is one of the top grocery retail chains in the Australian food retail

market and is amongst the top retailers in Australia. ALDI Stores continues to

expand nationally with the purchase of land, hiring of new employees and the

opening of new ALDI stores.

16. ALDI has recently become the third largest grocery retailer in Australia, and now

accounts for 10 percent of grocery sales on the eastern sea-board in the $82 billion

Australian grocery market.

17 ALDI' s customer base has risen four-fold in eight years, from an average 1 million

customers per month to 4.2 million a month. This number is to be compared to

Coles (8.8 million per month) and Woolworths (9.5 million per month).

(i) Annexed hereto and marked EXHIBIT 1 is an article

published in the Sydney Morning Herald on 12 February 2014

referring to the significant growth by ALDI in the past four

years.

18. ALDI stores are presently concentrated on the east coast of Australia, but ALDI

also has current plans to open as many as 115 stores in South Australia and

Western Australia.

19. Information regarding the ALDI group can be found on its website www.aldi.com.

3

ALDI TRADE MARKS

20. Trade marks registered in the name of ALDI Foods Pty Ltd are used by ALDI

Stores under licence from ALDI Foods Pty Ltd.

21. Hereinafter, I will refer to ALDI Stores and ALDI Foods Pty Ltd collectively as

'ALDI' .

22. ALDI has two primary 'house brands', namely, the word "ALDr' and the

distinctive A-logo below that is located outside every ALDI store and also appears

prominently on advertising and promotional material:

23. Herein I will refer to ALDI and the " A-logo" collectively as the "Trade Marks".

REVENUE

24. ALDI generates several billion dollars each year in revenue from its retai1 grocery,

mobile communication and online liquor business.

25. Of this revenue,

Special Buy products.

PROMOTIONAL EXPENDITURE

dollars would be generated by the sale of

4

26. ALDI spends approximately - each year on advertising and promotion.

CHARITABLE ACTIVITIES

27. ALDI is heavily involved in a number of charitable activities. ALDI regula.rfy

provides Bamardos with children's books, clothing, bed linen, electrical items and

other household goods to distribute to those who need them most. ALDI also has

contributed significant monetary donations to Bamardos.

PROMOTION

28. The Trade Marks feature prominently m all advertising and promotional

campaigns.

29. The primary method of promoting the Trade Marks is the ALDI Weekly Catalogue.

This catalogue is ALDI's primary method of advertising its products, and is

distributed to millions of Australians along the east coast every week.

30. From time to time, ALDI also advertises its products in daily, regional and national

newspapers. Such publications include:

Canberra Times; Heidelberg Leader; Preston Leader; Northcote Leader;

Manningham Leader; North West/Sunshine Advocate; Sunbury Macedon

Leader; Melton Express Telegraph~ Lilydale Yarra Valley Leader; Knox

Leader; Waverly Leader; Maroondah Leader; Berwick News; Packenham

News (BONUS); Cranboume News; Altona/Laverton/Williamstons Mail;

Werribee Banner; Geelong Advertiser; Warnambool Standard; Stonnington

Leader; Moorabbin Glen Eira Leader; Mordiallic Chelsea Leader; Albury

Wodonga Mail; Bendigo Advertiser; Frankston Hastings Independent;

South Gippsland Sentinel Times; Brimbank Leader; Shepparton News;

Albury Border Mail; Mornington Peninsula Leader; Bankstown Torch;

Inner Western Weekly; The Glebe; Parramatta Advertiser;

5

Campbelltown/Macarthur Advertiser, Campbetltown Macarthur Chronicle;

B1acktown Advocate; Batemans Bay Post; Liverpool Leader; Fairfield

Champion; Newcastle Herald; Newcastle Post; Cessnock Advertiser; New

Castle & Lack Maquarie Star; Canberra Times; Western Advocate;

Illawarra Mercury; Wollongong Advertiser; Orange Central Western Daily;

Penrith Press; Blue Mountains Gazette; Lithgow Mercury; Milton Ulladulla

Times; Southern Highlands News; Shoalhaven and Nowra News; Hill Shire

times; Hills & Northern News; Hawkesbury Gazette; St George &

Sutherland Leader; Goulburn Post; Central Coast Express Advocate; Mt

Druitt Standard; The Hornsby Advocate; The Manly Daily; North Short

Times; Mosman Daily; Wentworth Courier; Southern Star; Northside

Chronicle; Albert & Logan News; Pine Rivers Press; The Northern Times;

Caboolture Shire Herald; South-West News; South-East Advertiser; Bayside

Bulletin; Gold Coast Bulletin; Toowoomba Chronicle; Ipswich Queensland

Times; The Gympie Times; Bundaberg Newsmail; The Northern Star; Coffs

Coast Advocate; The Daily Telegraph; Herald Sun; Brisbane Courier Mail;

and the Frankston/Hasting Standard Leader.

ALDI SPECIAL BUYS

31. ALDI is well known for the variety of products sold at ALDI Stores.

32. In addition to normal grocery items, ALDI offers a large and varied range of

"Special Buys".

33. A Special Buy is a product that is not offered as part of ALDrs standard range. It is

to be contrasted with a 'special', which is a price reduction of an existing product.

(i) Annexed hereto and marked EXHIBIT 2 are samples of ALDI

catalogues featuring Special Buys.

(ii) Annexed hereto and marked EXHIBIT 3 is a list of Special

Buys sold by ALDI between January 2008 and January 2013.

6

Please note that the list has been redacted to remove sensitive

commercial information.

34. Special Buys are offered on an intermittent basis, with generally one or two

'themes' per week. For instance, once week might feature ALDI's range of garden

equipment and gardening products, while another might feature ALDI's range of

motorcycle apparel or mechanical tools.

35. Special Buys are high quality merchandise that are obtained by ALDI from

reputable suppliers.

36. ALDI Special Buys have become very well known in the Australian marketplace,

and I believe that many consumers look forward to their weekly ALDI catalogue in

order to see what 'Special Buy' products ALDI offers each week.

(i) Annexed hereto and marked EXffiBIT 4 are extracts from the

Facebook Page "ALDI MUM". This page currently has

approximately 70,000 likes, and is very popular among

Australian consumers

(ii) Annexed hereto and marked EXHIBIT 5 is a an article dated 7

July 2012 from www.weekendnotes.com.au entitled "Saving

Money at Aldi Supermarkets". In particular, I note the

following quotation on page 4:

"Beware the man trap in the middle qf the store. This is an ever

changing array of amazing goods such as screwdriver sets, ski gear,

barbecues and computers. This is where Aldi can get people to part

with their money. "

(iii) Annexed hereto and marked EXHIBIT 6 is a discussion thread

from 2009 from www.essentialbaby.com.au entitled "Are the

best/worst products at Aldi?''. In particular, I note the

following quotation on page 6:

7

"Another benefit of Aldi, watch out for special items. Fryingpans,

electricals, kids toys, tents, camping gear, kitchen appliances, kids

books.

My attitude is to buy it on special that week if we can afford it, if I change my mind, I can take it back next week for a refund But most

times. I've kept items because I needed them and found the quality was

great, hut price$ only 50% to 80% of buying.from other shops.

A few weeks ago, they had 8 point entertainment powerboard with

electrical, telephone and etc. My neighbours got J, 3 years ago, I 've

been waiting since. They were $40 a few weeks ago and I missed out, I

price the same at O.fficeworks, not that I shop much there, the same

was $180. "

(iv) Annexed hereto and marked EXHIBIT 7 is a discussion thread

from 2008 from www.essentialbaby.com.au entitled "ALDI -

Best Products? What to Avoid". In particular, I note the

following quotation on page 15:

"I also love the weekly specials and hal'e bought many good presents

at Aldi. such as beach towels, boo/cs, baby gifts, bibs, keepsakes,

toiletrie packs, colouring books"

(v) Annexed hereto and marked EXHIBIT 8 is an article from

February 2013, entitled "Aldi-Mum Week 17 Mummy

Swap?". In particular, I note the following quotation on page

2:

"Aldi is also a hoarders paradise with weekly specials on various

items including electronic goods, furniture, manchester, gardening

8

etc. We bypassed these goods today, although might revisit this

section on the 23rd of February for a $250 android tablet."

(vi) Annexed hereto and marked EXHIBIT 9 is a discussion thread

from 2009 from \\'Ww.essential_baby.com.au entitled "WDYT

is the best & worst products at Aldi?". In particular, I note the

following quotation on page 3:

"And their specials, quilt covers, ironing boards - the real random

stuff has been great! "

(vii) Annexed hereto and marked EXHIBIT 10 is a an article dated

15 November 2013 from www.lifehacker.COJJ!.au entitled

"ALDI's Special Buys Weekend Sale: How do the Deals Stack

Up?".

(viii) Annexed hereto and marked EXHIBIT 11 is a discussion

threat from forums.ski.com.au entitled "Big W I ALDI Snow

gear". In particular I note the following quotes:

"Well it's that time of year again when Aldi normally bring out their

snow gear sale ... "

"Will be interesting to see if Aldi have any of blizzards fat ski range

this year"

37. In my experience, many Special Buys are so popular that people will queue up

outside ALDI stores on the first day of sale.

ALDI EXPANSION

9

38. ALDI has also begun expanding into other service areas beyond the traditional

retail grocery market. This reflects a growing trend by supennarket chains to

diversify the range of products and services that they offer.

39. ALDI launched ALDIMOBil.,E in 2013. ALDIMOBILE provides very competitive

mobile phone plans to Australian consumers.

(i) Annexed hereto and marked EXHIBIT 12 are website extracts

from aldirnobile.com.au.

40. ALDI has also launched ALDI Liquor in 2013, an online liquor ordering and

delivery service for Australian consumers.

(i) Annexed hereto and marked EXHIBIT 13 are website extracts

from aldiliquor.com.au.

DIVERSIFICATION OF SERVICES IN THE RETAIL GROCERY SECTOR

41. In my experience, it has now become common for large grocery retailers to expand

the range of the services that they offer in the marketplace.

42. I am aware that Woolworths now offers banking and credit services, home

insurance, travel insurance, car insurance, life insurance, pet insurance, petrol

station services and mobile phone services.

(i) Annexed hereto and marked EXHIBIT 14 are website extracts

from woolworths.com.au.

43. I am also aware that Coles offers banking and credit services, car insurance, home

insurance and petrol station services.

(i) Annexed hereto and marked EXHIBIT 15 are website extracts

from cotes.com.au.

10

44. I am aware that the entry of supermarkets into non-traditional fields has led to

greater competition, particularly in the finance and insurance industry.

(i) Annexed hereto and marked EXIDBIT 16 is an article from

News.com.au, dated 10 January 2014, entitled "Supermarkets

Coles and Woolworths shake up Insurance War".

(ii) Annexed hereto and marked EXHIBIT 17 is an article from

www.smh.com.au dated 14 July 2014, entitled "Coles steps up

fight with big banks".

45. I am aware that Woolworths also intends to move into health related services, such

as providing in-store health checks to customers.

(i) Annexed hereto and marked EXHIBIT 18 is an article from

www.abc.net.au, dated 1 July 2014, entitled "Woolworths

health checks: Pharmacists concerned over moves to allow

check~ups in supermarkets".

46. I am also aware that there has been discussions about the possibility of

supermarkets providing services such as legal services and accounting services.

(i) Annexed hereto and marked EXHIBIT 19 is an article from

http ://www.lawteacher.net/, entitled "Lawyers face up to threat

from supermarkets".

(ii) Annexed hereto and marked EXHIBIT 20 is an article from

www.bbc.com dated 6 October 201 1, entitled "Supermarket

'law shops' to sell legal services".

47. I am also aware that many supermarkets provide instore food and beverage

services, such as coffee shops and patisseries.

(i) Annexed hereto and marked EXHIBIT 21 is an article from

www.insideretail.com.au dated 4 December 2013, entitled

"Coles new-gen stores open".

11

48. I expect that diversification of supermarket activities will continue in coming years.

MARKET RESEARCH BY ALDI

49. ALDI has conducted market research into consumer perceptions of its business in

Australia, via professional advertising consultancy firm BMF (~.bmf.com.au).

(i) Annexed hereto and marked EXIDBIT 22 is a PDF document

containing excerpts from market research conducted by BMF

on ALDI' s behalf.

USE OF ALDI MARKS IN RELATION TO PRODUCTS AND SERVICES

50. Given ALDI's significant reputation in the Australian marketplace, and in

particular its notoriety for selling a wide and varied range of products and services

not normally found in supermarkets, I believe that another person using ALDI, the

A-logo or a deceptively similar trade mark in relation to almost any conceivable

goods or services would cause consumers to wonder whether the person is

associated with ALDI, or has some license or approval from ALDI.

51 . I believe the potential for confusion is increased significantly given the expansion

of supermarkets to service areas beyond the normal range of traditional

supermarket services.

I make this declaration conscientiously believing the statements contained in this

declaration to be true and correct.

· · · ·····~·· · ···· ·· · ···· ·· 12.~ ~~~ 120 14

Date: __ Jttl:"P 2614

12