You might have seen this story in the news recently. Here’s our take on the situation (and what you can learn from it).
About 30 years ago, Marks & Spencer was the first retailer to launch a caterpillar cake. Colin the Caterpillar is a rolled sponge decorated with chocolate, buttercream, sweets and a smiling face.
Except for special occasions such as Halloween and Christmas, the design of the M&S cake has remained unchanged since around 2004. Later, they also launched Connie the Caterpillar, who wears a pink bow.
Colin is central to the M&S partnership with Macmillan Cancer Support, and the company sells a special version for the annual fundraiser ‘World’s Biggest Coffee Morning’.
M&S has three trade marks related to Colin, and believes the product has a “distinctive character” and goodwill.
Many other retailers have created similar products:
• Waitrose: Cecil
• Sainsbury’s: Wiggles
• Tesco: Curly
• Asda: Clyde
• Morrisons: Morris
• One Stop: Clive
• Co-op: Curious Caterpillar
Aldi’s caterpillar cake is called Cuthbert. They stopped selling it in February, but have recently announced a limited edition version from May to raise money for Teenage Cancer Trust and Macmillan.
Aldi tweeted about the proposed launch, and suggested that profits from all caterpillar cake sales from all supermarkets should go to cancer charities.
M&S replied that Aldi should use its own character, Kevin the carrot, and wants Aldi to agree not to sell similar cakes in future.
The resulting social media row went viral.
M&S has now lodged an intellectual property (IP) claim at the High Court. They say Cuthbert’s similarity with Colin rides on the back of the M&S reputation and leads customers to assume both cakes are of the same standard.
The M&S v Aldi case could be difficult to win as there are other caterpillar cakes on the market which they didn’t take action against at the time. That said, Aldi are known for creating products that are very similar to other brands. It will be interesting to see what happens.
What this means to you
Your IP is an important business asset and you need to protect it. Then, if a competitor copies your trade marked designs, you have the right to take them to court. But remember, you have to take action quickly as any delay might work against you.
For more information, please follow the link below or talk to Anne Smith in our Litigation & Dispute Resolution department.