“Cuthbert the Caterpillar Cake” Attract Legal Action by Marks & Spencer

Marks & Spencer (M&S) recently sued the German supermarket chain, Aldi, over a cake. M&S says that the cake infringes its ‘Colin the Caterpillar’ brand widely. The lawsuit was filed at the UK High Court. According to M&S, “Aldi’s ‘Cuthbert the Caterpillar’ cake is likely to confuse consumers and rides on the coat-tails of ours.”

“M&S is concerned that this could be a classic case of mistaken identity as far as shoppers are concerned and they have decided to take action to clear things up,” said Mark Caddle, partner at European IP firm Withers & Rogers. “Colin the Caterpillar has been very popular in the UK market, which could aid M&S's case. The High Court’s decision will rest on whether it thinks Cuthbert is too close to M&S' branding and whether Aldi is seeking to benefit commercially by bringing a confusingly similar product to market,” Caddle added.

M&S is seeking an order from the court barring the further sale of ‘Cuthbert the Caterpillar cake’ and any other products amounting to infringement all over in the UK. However, a spokesperson for Aldi said “We will not be commenting on the lawsuit as we only learned of M&S’ claims on April 15. Further, Cuthbert the Caterpillar cake had not featured on shelves since February this year.”

It is interesting to note that M&S owns three different trademarks for their brand which includes other related products such as Connie the Caterpillar. Interestingly, there are several other UK supermarkets that sell their own caterpillar cakes. Such supermarkets include ASDA’s “Clyde” and Sainsbury's “Wiggles” as well. "Because we know the M&S brand is special to our customers and they expect only the very best from us, love and care go into every M&S product on our shelves,” said a spokesperson for the UK company."So we want to protect Colin, Connie, and our reputation for freshness, quality, innovation, and value."

It is not the first time that German retail store Aldi is facing legal action over alleged copying someone else’s products which gives a hint at well-known brands of the industry. In the year 2014, The Saucy Fish Co. brought a trademark action against Aldi where it won a preliminary injunction after convincing the High Court that its brand was distinctive in every aspect. However, the parties later decided to settle out of court.

Another instance against Aldi was when Brewdog who is a UK craft brewer poked fun at Aldi’s product which was resembling its flagship Punk IPA last year while unveiling a new beer with the name “Ald IPA”. Subsequently, Aldi agreed not to launch the product in the market and stock it. Let’s see what will happen this time but having a look at the facts of the case and history of legal actions against Aldi, the possibility of getting a ruling in favor of M&S is high.