Wondering what the latest news is regarding the M&S and Aldi court case? Here’s the breakdown of the latest news and action on the Colin vs. Cuthbert dispute …
In April 2021, our Twitter feeds were flooded by two of the nation’s favourite supermarkets battling over copyright issues with two much-loved, similar looking cakes. Aldi’s Cuthbert the Caterpillar, which seemed rather alike to M&S’ Colin the Caterpillar, spurred a court case which inspired a nation.
We’re fairly used to hearing about long and protracted legal disputes in the news, which keep dispute resolution solicitors in business. But, one that has been brought up in the headlines over the last 12 months is the epic battle between Colin and Cuthbert.
The dispute has been particularly popular due to the online PR battles broadcasted on Twitter, just for our pleasure. Here’s the breakdown of everything that’s happened!
The origin of M&S’s Colin the Caterpillar
In 1990, high street stalwart, Marks & Spencer, launched its Colin the Caterpillar cake which, as the name suggests, is created in the image of a friendly caterpillar. The cake soon became a firm favourite for children’s birthday parties and, since its launch, M&S has sold over 15 million Colins.
Fast forward to 2019, Colin wasn’t the only caterpillar on the block as budget brand, Aldi, chose to launch its own version of the popular cake, called Cuthbert. While both cakes look incredibly similar, there was one major difference; while Aldi’s Cuthbert sold for a budget busting £4.99, Marks and Spencer’s Colin retailed at a steeper £7.
Needless to say, M&S did not welcome Cuthbert with open arms. Instead, in June 2021, M&S launched a high court claim against Aldi for breach of intellectual property rights.
The issue with Aldi’s Cuthbert the Caterpillar
When M&S first launched its Colin the Caterpillar cake, they protected the name, appearance, and packaging through registering a trademark. This means that M&S subsequently gained ownership and exclusive rights to use these things.
M&S claims that Aldi’s Cuthbert cake infringed on this trademark and, therefore, broke the law. Trademark infringement occurs when a person or brand creates and sells a product or service which is identical or similar to one which has been trademarked by another party. M&S’s argument is that it’s customers may buy Aldi’s Cuthbert instead of Colin, thus depriving M&S of revenue.
The Colin vs. Cuthbert court case
While M&S claimed that Aldi was ‘passing off’ Cuthbert as Colin, Aldi’s argument was based on the insistence that other supermarkets were also selling similar cakes namely, Clyde, Cecil, and Curly. In fact, the brand appeared to be refusing to take the matter seriously, as it posted a number of humorous tweets relating to the case.
The claim by M&S is made up of two parts:
‘Passing off at the point of sale’
In plain speak, M&S accused Aldi of misrepresentation at the point of sale, i.e. when the customer sees the product on the shelf and subsequently chooses to make a purchase.
‘Post-sale passing off’
This is a very recent concept which claims that goodwill exists in the presentation of the Colin cake. For example, the roll shape, the molded white chocolate face, and the chocolate shell topped with coloured chocolate beans. Essentially, Cuthbert, according to M&S, is a fraud!
This concept, according to M&S, suggests that a customer who has bought Cuthbert may only realise on unwrapping the product that it is not the same product as the M&S Colin the Caterpillar cake.
M&S claims that this may harm its reputation as customers are buying what M&S perceives as an inferior product, believing it to be the brand’s own superior one.
While this may seem like a lot of expense and hassle over a couple of cakes, M&S appears to believe that its reputation, which it has enjoyed since 1884, may be at stake should Aldi continue to sell its Cuthbert the Caterpillar cake.
The latest on the Colin vs. Cuthbert case
On Thursday the 3rd of February 2021, it was reported that an agreement in the consent order filed at the High Court had been signed off. It’s thought that Aldi and M&S have now reached an agreement and that the legal claim by M&S has now been withdrawn.
While details of the agreement have not been published, Aldi seemed to confirm that the legal case has now ended with a tweet reading “Cuthbert is free and looking forward to seeing all his fans again very soon”.
The next steps
Although we don’t know the details of the agreement which was hashed out between the two brands, it’s possible that Aldi agreed to make a payment to M&S in order to close the infringement case.
The fact that Aldi has announced that Cuthbert will be back on its shelves tells us that Marks & Spencer perhaps did not succeed in their claim that the trademark was infringed. For fans of Cuthbert, this is certainly good news, although Aldi is yet to announce an actual date as to when the cake will once again be gracing its shelves.
This isn’t the last you’ve seen of Cuthbert
Legal action can be time consuming and stressful, so it’s no doubt a relief to both parties that this case is now over, almost 12 months after it started. While there has been no disclosure over cost, it’s likely that it certainly has not been cheap for either brand.
During the case, M&S received its fair share of criticism over the legal action, with many people believing that the retail giant was bullying Aldi who could, arguably, be seen as the underdog.
Thankfully, it seems that, whatever agreement was made, both brands have escaped with their reputations intact. Although, whether Colin and Cuthbert do, in fact, become besties, remains to be seen.
