The caterpillar cake conundrum

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Last week, Marks & Spencer launched legal action against supermarket competitor Aldi. M&S claim Aldi has infringed the trademark of its Colin the Caterpillar cake with its very own Cuthbert the Caterpillar – a seasonal product that it has not been selling since February. 

M&S filed an intellectual property claim with the High Court. It wants Aldi to stop selling Cuthbert and any similar products, suggesting that Aldi is ‘riding on the coat-tails’ of its reputation. There are concerns that, owing to their likeness, consumers may be led to believe that they are products of the same standard. M&S has to prove Colin’s immediate recognisability to consumers and that Cuthbert’s similarity to it amounts to a legal misrepresentation.

Is this claim even worth the hassle? If it succeeds, M&S has one less caterpillar copycat on the shelves of its competitors, but public opinion could render the move futile. If it fails, then M&S will have failed to show, legally, that Cuthbert is simply a Colin imitation, which could still damage the brand. However, it may be worthwhile in the long run for M&S, given how important the product is to their brand.

M&S’s Colin the Caterpillar is just over 30 years old, having been launched in 1990, and has sold over 15 million cakes. M&S has launched a female version, Connie, and a range of other product types based on the design, as well as seasonal variations for Christmas and Halloween.

Colin has also been a key component of M&S’s long-standing partnership with Macmillan. It is now Aldi leading the charitable charge, having placed Cuthbert back on sale for fundraising purposes, under the hashtag #caterpillarsforcancer. Aldi appears to be trying to appeal to the other big supermarkets to help raise money for cancer charities. Waitrose and ASDA have agreed to participate (on social media at least).

Aldi’s social media team’s rather tongue-in-cheek responses have been making the rounds on Twitter, with several posts under the hashtag #FreeCuthbert. They have been making light of the situation, roundly mocking M&S. Aldi called M&S ‘Marks and Snitches’ in a tweet. M&S have only recently responded, while Morrison’s and the Co-op’s social media teams have also been joining in.  

‘When decided, the case could set a significant precedent in this particular area of intellectual property

Aldi even chimed in on the recent sacking of Tottenham Hotspur manager Jose Mourinho, pleading with Spurs to announce Cuthbert as their new boss. Additionally, the Twitter account behind the popular battle-royale game Fall Guys has jokingly asked permission to put Cuthbert into their game. One certainty is that the entire fiasco has placed both Colin and Cuthbert into the spotlight. It is Aldi’s product that appears to have garnered the most support from the public. Aldi seems to be winning the social media battle so far, but whether they will succeed in the courts is another issue altogether. 

Nonetheless, this legal action may not come as a surprise, given the similarity between the products. Some have found it baffling that M&S is only coming after Aldi out of anyone, given the array of potential for legal actions against other competitors and their Colin spin-offs.

Such spin-offs include Waitrose’s Cecil, Morrison’s (get this) Morris, Tesco’s Curly, Asda’s Clyde, Co-op’s Charlie, and Sainsbury’s Wiggles the Caterpillar. They all bear similarities to M&S’s original product, and most of them are cheaper than Colin. Although, John Coldham, a Partner at firm Gowling WLG, has suggested that Cuthbert is much more similar to Colin than the other caterpillars. A brief glance at either product would confirm this. 

When decided, this case could set a significant precedent in this particular area of intellectual property . If held in M&S’s favour, it could have a domino effect on the other copycat caterpillars and retailers’ imitations of others’ products in general. However, this is a risky move on M&S’s behalf, which could well backfire. Public opinion seems to have swung in Aldi’s favour.

For now, despite its potential seriousness, the incident is providing for some light-hearted relief. We will have to wait and see how this plays out, but for now, whose side are you on? Are you Team Cuthbert? Or Team Colin? Maybe you’re neither, or perhaps you prefer one of the many alternatives elsewhere. Or maybe you really couldn’t care less about caterpillar cakes. 

Photo: Jessie Codling via Flickr

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