Colin -v- Cuthbert – Caterpillars at war!

20th April 2021 Commercial Litigation

If you haven’t already heard, M&S has lodged an intellectual property claim against Aldi over its famous Colin the Caterpillar Cake which has an unrivalled reputation in the confectionary market. The court case has caused a stir on social media over the weekend with #FreeCuthbert trending on twitter.

The intellectual property claim has been brought against Aldi for their Cuthbert the caterpillar cake, a cheaper alternative brought out by the competitor.

M&S holds three registered trademarks in relation to Colin and his female counterpart, Connie the Caterpillar. M&S is seeking a remedy to ensure Aldi removes Cuthbert from its stores and agrees not to sell similar products in the future. Other remedies sought might include an account of profits made by Aldi in relation to Cuthbert or destruction of all the infringing cake – surely not!

Trade mark infringement occurs when a registered trade mark is being used in the course of trade without the proprietor, in this case M&S, giving their consent. M&S will be seeking to prove Cuthbert is identical or similar to Colin in the context of the registered trade marks and is also used in the same or a similar marketplace.

The unrivalled reputation of Colin will also be considered as well as whether the public might be likely to confuse the two caterpillars by way of association. M&S have publicly said that they believe consumers have been led to believe the two caterpillars are of the same standard, which subsequently allows Aldi to “ride on the coat-tails” of Colin’s reputation. They consider the claim is being brought to protect Colin’s reputation and the reputation of the M&S brand given that they pride themselves on producing quality goods.

Whilst Aldi is arguably taking unfair advantage of M&S’ reputable caterpillar cake, Colin has already been mimicked by other rival’s - Waitrose’s Cecil, Asda’s Clyde, Sainsbury’s Wiggles, Coo-op’s Charlie and Tesco’s Curly the Caterpillar are all similar products – however, it seems that Aldi’s Cuthbert has been the only cake to give rise to a legal battle so far.

Aldi also took to Twitter to call out M&S once the news hit that the court case had been issued. The retailer was renamed ‘Marks & Snitches’ with Aldi stating they were ‘Just Colin their lawyers’ after the news broke. M&S hit back on Instagram and confirmed Colin would not be commenting but was thankful for all the support. They also retaliated with their own hashtag #OGColin.

If the case reaches court, the judiciary will need to take into account all the relevant factors including whether Cuthbert in particular is taking unfair advantage of Colin’s distinctive characteristics and reputation. Aldi may argue that caterpillar shaped cakes have become commonplace in the market and Cuthbert’s individual characteristics, such as his name, mean that he does not infringe the registered trademarks.

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Jemma Fleetwood is a Solicitor located in Manchesterin our Commercial Litigation department

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