FOOD FIGHT: Colin vs Cuthbert Rian Shah In a world replete with the worries of a pandemic and fears of whether life shall ever be ‘normal’ again, the UK’s legal news finds itself headlined by a feud between two supermarket caterpillar cakes: Colin versus Cuthbert. Colin was launched by Marks & Spencer in 1990, patrolling the market alone whilst providing a simple solution to the dilemmas faced by parents at their children’s birthday parties. Other supermarkets such as Sainsburys, Asda, Waitrose, and Tesco began to introduce their own versions of caterpillar cakes from 2011 and until recently the caterpillars had coexisted in a friendly market. This, of course, was until Aldi’s replica Cuthbert the caterpillar disturbed the peaceful harmony of the animal cake market. Aldi sells its cake at £4.99 whereas Marks & Spencer charges a pricier £7 and shoppers have argued that the Marks & Spencer version is a “rip-off”, a potential reason as to why the supermarket giants have decided to take legal action against Aldi. The Intellectual Property Act (IPA) of 2014 delineates that “infringement of registered designs” is a registered criminal offence and businesses which intentionally copy registered designs are liable to hefty fines and bans. Thus, on the 15th of April of this year Marks & Spencer lodged an intellectual property claim to the High Court suggesting that Aldi’s caterpillar cake “rides on the coattails” of the reputation of their original version. A claim of copyright infringement under the UK Copyright, Designs and Patents Act of 1988 was also lodged. The complaint suggests that Aldi have undermined the
authenticity of Marks & Spencer’s cake. The intention of the legal action is to ensure that Aldi remove the product from its shelves and agree to never sell similar products in the future; in effect disallowing Aldi from selling a caterpillar cake that Marks & Spencer deem too similar to Colin. Marks & Spencer holds three trademarks relating to Colin and a spokesman suggested that the reason for the legal action is to uphold the supposed reputation Marks & Spencer has for its freshness, quality, innovation, and value. The High Court’s decision will rest on whether it believes that the cake served by Aldi is being used as an attempt to confuse consumers to gain commercial benefit. Aldi is no stranger to intellectual property claims, as in 2014 it escaped punishment by fighting off allegations bought to court by Moroccan Oil against Aldi’s own brand version “Miracle Oil”. However, in the same year it did not have success in battling Icelandic Seachill who claimed Aldi had infringed their trademarks, and Aldi were forced to remove the product and the companies settled out of court. Yet despite these previous and current allegations, Aldi ran an incredibly successful social media campaign in which it pledged a “friendship” between Colin and Cuthbert, with the proceeds of each cake sale going to a charity. The back-and-forth tweets split twitter into two sides: #SaveColin or #FreeCuthbert, whereby tweeters chose and fought for their preferred slogan. Aldi was widely praised for its humour on its social media channels however the Marks & Spencer’s representatives remained firm on their disapproval of any form of Cuthbert being sold, jokingly suggesting that Aldi use Kevin the carrot cake as a substitute for Cuthbert. Economically, Aldi’s social media campaign has boosted their sales and caused heightened interest as to why Marks & Spencer were so opposed to the sale of Cuthbert. The increased public curiosity has caused a surge in demand for Cuthbert cakes and experts expect them to sell rapidly when they return for a two-week stint. Marks & Spencer’s legal action becoming so prevalent within the press has in fact helped Aldi as it
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