Copy Caterpillar – The M&S and Aldi cake wars

It is a case that is currently making headlines in the UK and dominating discussion over a cup of tea and slice of caterpillar cake.

M&S have brought a legal case against Aldi in respect of their sale of a Cuthbert the Caterpillar cake. That cake is noticeably similar to the well known and popular Colin the Caterpillar cake which has been so successful for M&S since it was first launched many years ago.  While other retailers have marketed similar cakes, such as Waitrose’s Cecil the Caterpillar, it appears that it is the low price of Aldi’s cake that has prompted the legal action by M&S.

The case brought by M&S is likely to have two separate lines of attack.

Trade Mark Infringement

Firstly, M&S are likely to allege that the Cuthbert the Caterpillar cake infringes their trade marks of the names ‘Colin the Caterpillar’ and ‘Connie the Caterpillar’ and the packaging of the Colin the Caterpillar cake.

M&S will argue that in each case the similarities in the packaging or the name are likely to lead to confusion in the market place and cause consumers to believe that the Aldi cake is associated or connected with or from the same supplier as the M&S versions.

M&S will also argue that as a result of the public awareness of the Colin the Caterpillar product, Aldi’s use of similar names and packaging take unfair advantage of the enhanced reputation which those marks may have acquired.

Passing off

M&S case also may argue that Aldi are passing off their Cuthbert cake as a Colin cake (or coming from the same source). Similar to the trade mark arguments on unfair advantage, M&S will rely on the significant reputation and consumer awareness of the Colin cake to allege that Aldi have misrepresented that their Cuthbert cake is associated with or connected to the Colin version.

M&S’s case on passing off may be stronger, as it will not be limited to the elements covered by the separate trade marks, but could include any and all similarity including the overall shape and decoration of the cake. However, they will face the task and cost of providing evidence of the reputation in those elements alone as opposed to the name and other packaging.

Aldi is well known for sailing close to the wind with its packaging, with recent spats with Brewdog and others making the news. They may seek to argue that their customers are aware of this practice and won’t be confused as to the origin of the Cuthbert cake.

It will be interesting to see how the case develops. It has already garnered a lot of media attention (which is unlikely to disadvantage either party) but any finding of infringement against Aldi could lead to an increase in challenges and cases being brought against Aldi by other food manufacturers.

For further questions please do not hesitate to contact Ross Waldram directly on [email protected] or 0207 822 2236.

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