M&S settles caterpillar cake lawsuit with Aldi
Marks & Spencer (M&S) and Aldi have settled a high profile lawsuit centring on the German supermarket’s alleged “copycat” caterpillar cake.
The UK store sued Aldi in April last year claiming that its ‘Cuthbert’ caterpillar cake infringed its own ‘Colin the Caterpillar’ brand. M&S said that Aldi’s cake was likely to confuse customers and “rides on the coat-tails” of the established ‘Colin’ brand.
Following the complaint and the accompanying high-profile publicity, Aldi withdrew the ‘Cuthbert’ cake from its store shelves.
However, Aldi’s cake was briefly reintroduced later in the month for a “limited edition” run that donated all proceeds from cakes sold to its charity partners, Teenage Cancer Trust and Macmillan Cancer Support.
Aldi started selling the cake again in May after making changes to the design of the cake.
Now, the two companies appear to have settled their dispute, with Aldi taking to social media to claim that Cuthbert would be “getting out early on good behaviour” this Spring.
“The objective of the claim was to protect the IP in our Colin the Caterpillar cake and we are very pleased with the outcome,” an M&S spokesperson told WIPR.
Mark Caddle, partner and trademark attorney at European IP firm, Withers & Rogers, said: “For the trademark purist, there may be some disappointment that this case settled and its merits were not decided upon. Aldi has noted via its Twitter account that Cuthbert will return ‘this Spring’.
“While the precise details of the settlement terms are unknown, it will be interesting to see if consumers can spot any different or new features in the Aldi Cuthbert product, which could be a reflection of the settlement terms imposed by M&S.”
This settlement might not come as a surprise as to prevail in court, M&S would have likely had to prove ‘passing off’—in which a trader is ruled to have misrepresented goods as being from another trader.
However, John Coldham, partner at WLG Gowling told WIPR in April that passing off “always has limitations and is generally not considered to be as effective as unfair competition can be in some of the European jurisdictions.”
Christmas gin
While this lawsuit has come to an end, both M&S and Aldi are still locked in a separate suit over the design of Aldi’s light-up Christmas gin bottles.
Whereas both supermarkets took to social media to fire shots over the ‘Cuthbert’ dispute, the gin bottle suit was markedly less public.
M&S filed the lawsuit at the England and Wales High Court on December 3, 2021, alleging that Aldi’s blackberry and clementine gin liqueur, ‘The Infusionist’ copied M&S’ own festive range of bell-shaped light-up gin bottle designs—which were registered as designs earlier that year.
In this case, Aldi had been selling the Infusionist gin since early November, featuring a similar bottle shape with a light at the base to illuminate gold flakes in the liqueur to its M&S counterpart. However, Aldi’s product sells for approximately £6 less than M&S’s.
‘Copycat’ controversy
Aldi has caught flak over many ‘copycat’ products, but the disputes rarely make it to trial.
Notably, the German supermarket chain produced an infamous version of Brewdog’s own ‘Punk IPA’ beer called “anti-establishment”, which caused the brewery to fire back with a limited run of its ‘YALDI IPA’ inspired by the supermarket’s branding.
M&S also caught flak after they were accused of copying a family-run chocolatier's Valentines Day chocolate products ahead of the event this month.
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