Kay Stewart & John Szepietowski discuss Marks & Spencer’s legal action against Aldi for copycat Colin the Caterpillar cake

The iconic caterpillar is well-known across the nation for making its appearance as the highlight of celebrations on a child’s birthday since 1990. More recently in 2019, a similar caterpillar surfaced amongst the supermarket chain Aldi, giving rise to claims of copyright infringement by Marks and Spencer.  Infringement in simplistic terms refers to the act of one using another’s intellectual property without obtaining the owner’s permission.

Many find it had to source the indifferences between the original Colin the Caterpillar cake and its younger adversary Cuthbert the Caterpillar with many members of the public speculating about which of the two cakes are superior. The media attention to this matter has spread nationally as the public is divided on Marks and Spencer’s legal action against Aldi. Both supermarket chains have taken to social media to address the caterpillar cakes alikeness with Aldi recently posting on social media their plans for sale proceeds to be in benefit of Teenage Cancer Trust and Macmillan Cancer Support in what one may deem to be a tactical manoeuvre on Aldi’s part. Those conscious of Colin the Caterpillar’s reputation may also be aware that it has been a larger benefactor for Macmillan Cancer Support with the cake being produced for the Annual Biggest Coffee Morning fundraiser.

Marks and Spencer issued proceedings for trademark infringement against Aldi in April earlier this year. Marks and Spencer have registered trademarks for the wording “Colin the Caterpillar” and “Connie the Caterpillar” together with the packing for Colin the Caterpillar. By issuing a trademark infringement claim, it is arguable that Marks and Spencer have a greater chance of succeeding than if they were to make a claim for passing off. In the most likely scenario, Marks and Spencer would be averting Aldi’s Cuthbert the Caterpillar is similar to Colin the Caterpillar and thus amounts to an infringement of the trademark. Upon assessing both the name of the cake and its packaging, one can understand Marks and Spencer’s claim and the possibility that Aldi receives benefits on Cuthbert’s similarity to Colin. Aldi is not a newcomer to infringement claims in the United Kingdom, with a claim made against them by Moroccanoil Israel Ltd in 2014 and a more recent case of Islestarr Holdings Ltd v Aldi Stores Ltd [2019] EWHC 1473(Ch) whereby Islestarr Holdings Ltd successfully obtained a summary judgment against Aldi for copyright infringement for its pressed powder beauty product.

For further information on this topic or on any other legal area, please contact John Szepietowski or Kay Stewart at Audley Chaucer Solicitors on 01372 303444 or email admin@audleychaucer.com or visit our Linkedin page.

Larissa Bourgi

This information was correct as of September 2021

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