Team Colin or Team Cuthbert? The case of the caterpillars

Posted Tuesday 4th May 2021

On 15 April 2021, Marks & Spencer (M&S) filed an intellectual property claim against Aldi with the High Court. M&S launched legal action against Aldi to protect three trademarks of their Colin the Caterpillar cake.

M&S’ Colin the Caterpillar cake has been around for over 30 years; it is one of the UK’s favorite and most well-known cakes. The ‘Colin the Caterpillar’ trademark was registered by M&S in the United Kingdom and European Union in April 2009.

Over the years M&S has launched special editions of the cake for Halloween, Christmas and Valentine’s Day, as well as a sister product Connie the Caterpillar. However, since M&S began selling their Colin the Caterpillar cake, several other retailers have produced and sold similar caterpillar products. Tesco has ‘Curly the Caterpillar,’ Asda has ‘Clyde the Caterpillar’ and Sainsbury’s has ‘Wiggles the Caterpillar.’ The question people are now asking is why has M&S filed a claim specifically against Aldi’s Cuthbert the Caterpillar?

The argument for bringing the claim against Aldi, despite there being a large array of supermarket caterpillar cakes, arises from the distinct similarities between M&S and Aldi’s caterpillar cakes. The colour of the chocolate eyes, the shape of the caterpillars’ faces and antennae, the use of smarties on top of the caterpillars, as opposed to other toppings, and the packaging styles of both are arguably very similar.

In the claim, M&S asked Aldi to cease the sale of Cuthbert the Caterpillar and not to sell any similar products in the future. M&S are arguing that the close similarly of Aldi’s product “rides on the coat-tails” of Colin’s reputation. M&S believe that Colin has a distinct character and reputation, and as a result Aldi are unfairly benefitting from this well-known reputation.

Furthermore, whether Aldi’s product is close enough to cause confusion among customers is a significant issue for M&S. This is because this may lead to incorrect assumptions that Cuthbert is from, or connected to, M&S. M&S also have concerns that if customers are dissatisfied with Cuthbert that M&S’s reputation could be damaged because of the similarity in the cakes.

Aldi stopped selling their cake in February 2021, two months before the claim was filed by M&S. After a short hiatus, Aldi have announced they will be bringing Cuthbert back with all sale proceeds going to charity. Aldi’s social media jokes seem to be playing down the situation however it remains to be seen how this case of the caterpillars will play out. It doesn’t sound like it will be a piece of cake?

This article is for reference purposes only. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any action.

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