Imitation – The Sincerest Form of Flattery, or Just IP Theft?

Earlier this year a trademark infringement case hit mainstream news headlines.  Marks & Spencer sued Aldi, alleging that Aldi’s “Cuthbert the Caterpillar” cake infringed on its “Colin the Caterpillar” trademark.  Released in 2004, the M&S cake has remained largely unchanged, save for a few special editions for events such as Hallowe’en and Christmas, and the “Connie the Caterpillar” related product, so it’s no surprise that M&S would want to protect this particular part of its intellectual property portfolio.

In its claim lodged at the High Court, M&S claimed that the Aldi cake could mislead consumers into believing that the “Cuthbert” cake is of similar quality to its own, and that Aldi was attempting to “ride on the coat-tails” of M&S’ success.  Other supermarkets who have similar cakes, such as “Wiggles” from Sainsbury’s, have remained noticeably quiet on the issue.  The cakes available at other supermarkets, however, do tend to bear less of a resemblance to “Colin”.

The use of trademarks became a useful tool for consumers as far back as medieval times, when market traders would mark their products in order to not only give their customers confidence in their purchases, but to also allow those customers to hold the trader accountable should a product turn out to be defective.

The “Colin the Caterpillar” infringement isn’t the first time a case has been brought against Aldi.  In 2014 the Saucy Fish Company took action when it discovered that Aldi’s packaging for its range of convenience products resembled its own, including the use of similar language on the packaging.  The High Court instructed Aldi to remove the items from sale.

Although this case raised the profile of trademark issues, it is unusual for such cases to be brought.  Consumers are generally brand-aware, even when purchasing items from one brand that look similar to those from others.  It is not unusual for supermarkets’ own-brand products to bear resemblance to those of specific brands, especially where attributes such as colour are used to denote a product’s flavour.

The action taken by M&S caused quite a stir on social media, resulting in the hashtag #FreeCuthbert to trend for several days on Twitter, with the majority of social media users appearing to side with Aldi, especially when Aldi responded by supporting Macmillan, the cancer charity that is one of M&S’ key charity partners.  An updated “Cuthbert” appeared in stores a few weeks later, with Aldi anticipating that the changes would fend off any further legal woes.

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