Recently, if you have been trapped in your student house with only that overdue essay and a pile of washing up as a distraction, you may have stumbled upon one of the weirder news stories of late – Marks and Spencer’s legal action against Aldi’s Cuthbert the Caterpillar. Yes, it is about a cake. Or more correctly, about who should own the rights to said cake.
High street chaiin Marks and Spencers made headlines when it submitted an intellectual property claim to the High Court last month. It accused supermarket chain Aldi of infringing on its ‘Colin the Caterpillar’ trademark with its own brand ‘Cuthbert the Caterpillar’ cake. Mark and Spencer’s legal team behind the trademark recently insisted that Colin has an ‘enhanced distinctive character and reputation’, a reputation that Cuthbert is allegedly riding on the coat-tails of.
While there is no doubt that Marks and Spencer got their foot in the door first (Colin is 30 years old!), it is not readily apparent why Aldi was the chosen target. As you may be aware, there are many knock off Colin’s in almost every high street supermarket: Waitrose has Cecil, Sainsbury has Wiggles, Tesco has Curly and Asda has Clyde. So why Aldi?
James O’Brien theorised on radio station LBC that ‘it’s all about the face’. O’Brien argued that Cuthbert ‘is not only physically similar, but the cake face is solid chocolate’. According to O’Brient, this is the most recognizable feature tying Cuthbert to Colin, claiming that ‘the face of the cake has become a brand in and of its own’.
But after a little bit of digging, this might not be quite true. While O’Brien is correct that some other Colin imitators have a face made of fondant instead of white chocolate, many of the more expensive brands have retained that feature; namely Waitrose and Sainsbury.
One theory still standing is the act that Aldi’s Colin pastiche is markedly cheaper than M&S’ at £4.99 versus £7.00, giving them an undeniable competitive advantage. And if you have been to an ad hoc student birthday party in the last few years, you know that every penny counts when it comes to hosting. Aldi’s blatant knock off selection of cheaper branded items is also not a well-kept secret. The brand has been prolific in producing hilarious items such as Nordpak, a wallet-friendly Lurpack, and Bixies the new Weetabix.
Suggestions that M&S is making wider statements about Aldi’s nonchalant attitude to trademarks in general seem valid theories. But the reaction to the Colin and Cuthbert case suggests that this does not mark a further purge of supermarket copyright violation. This is partly down to Aldi’s cleverly calculated social media response, which pokes fun at the triviality of M&S’ actions. Aldi’s #FreeCuthbert campaign garnered unprecedented support from a nation locked inside, and the announcement that Cuthbert will return as a charity item further scampered M&S’ chances of being labelled the victor in all this.
So, what is the future for our supermarket trademark wars? In short, the whole affair has arguably been more damaging for the brand reputation of the prosecutor rather than the defendant, who face an uphill battle against an item now selling for the benefit of the Teenage Cancer Trust. And as Gary Assim, an intellectual property expert, surmises:
“M&S may find their case against Aldi difficult since there are other caterpillar cakes on the market. They should have taken a zero tolerance approach from the start if they felt that Colin and Connie were so important to them. “
For now, it seems safe to say that the Cuthberts, Clydes and Curlys of the world will remain on our supermarket shelves for a little while longer.
Image credit: BBC