A court case has erupted between retailers Marks & Spencer and Aldi, culminating in an online spat over their respective caterpillar-themed cakes.
Colin the Caterpillar cakes are a mainstay of Marks & Spencer stores, with over 15 million sales to date. However, M&S has launched an intellectual property claim in protest of Aldi’s similar product, Cuthbert the Caterpillar. They claim the iced insect is trying to ‘ride on the coat-tails’ of M&S and their reputation.
Aldi has been taken to court over similar matters before. In 2001, Frito-Lay sued Aldi in Australia for their Cheezy Twists, which Frito-Lay argued were deceptively similar to their cheese-flavoured Twisties. Frito-Lay won, but Aldi successfully appealed on the basis that trademark law only covers the names and logos of the product, which the court found were sufficiently distinct.
The case, however, has become guerrilla marketing for both companies. Marks & Spencer posted on Instagram with the hashtag ‘#OGColin’, noting him as ‘the original and best’. Meanwhile, Aldi has posted that this is ‘not just any court case’, a reference to the M&S slogan followed by ‘#FreeCuthbert’.
Though a very real legal fight will be conducted at court, social media has transformed it into a battle of the brands, where people can show support by joining the hashtag of their favourite cake. Whilst the outcome of the case cannot be predicted at present, Cuthbert does look nearly identical to Colin, and it may be that M&S present it as a case of trademark infringement by confusion. In simple terms, could someone buy Cuthbert in the mistaken belief that they were buying Colin? Whatever the court decides, it seems that both brands, and sales of both Colin and Cuthbert, are likely to benefit from the surrounding social media storm.
If you have a trademark which you would like to protect, we can assist you for a fixed fee. Please contact Lee Middleton, Luke Smith or Gayle McDermott to discuss further or visit our trademark page for more information generally. We look forward to working with you to further protect and promote your brand and the future of your business.