Has Aldi taken its last slice of Cuthbert?

There can be no escaping the caterpillar wars that are taking place in the High Court of England and Wales. Marks & Spencer has issued intellectual property claim alleging that Aldi has infringed its Colin the Caterpillar trademarks. The words of “Colin the Caterpillar” are in themselves a trademark and are synonymous with the M & S brand. The cake has been a frequent fixture at many tables and celebrations since 1990, with M & S recently extending the brand. M & S asserts that Aldi has relied upon the reputation and similarity of Colin the Caterpillar and that the rival cake “ rides on the coat-tails” of Marks and Spencer’s reputation.

Trademark infringement can arise in a number of ways. In this case, even the Colin the Caterpillar packaging has a recent trademark. The Court will have to consider if Aldi has purposely created a similar caterpillar cake which causes confusion to members of the public or takes advantage of the reputation of M & S’s trademark. If M & S are successful, they may seek an injunction preventing Aldi from selling its caterpillar cake and damages for the loss of sales or damage to the goodwill of the Colin the Caterpillar brand. These remedies are not exhaustive.

There are not only 2 caterpillars on the market. Other retailers also have similar products. The question is, will M&S now apply a blanket approach to all rival products? This case will shape the caterpillar cakes on the market for years to come. The cake wars are only beginning.

This article has been produced for general information purposes, and further advice should be sought from a professional advisor. For advice or information, please contact our Reputation Management team at Cleaver Fulton Rankin.

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