The battle of the caterpillars
As has been widely reported in the press, M&S has brought proceedings in the High Court accusing Aldi of trademark infringement.
M&S has accused Aldi of infringing its Colin the Caterpillar trademark.
Similarities in the Products
M&S has reportedly said that Aldi’s Cuthbert cake is similar to M&S’s Colin cake, and this would lead consumers to believe that they were of the same standard and “rides on the coat-tails” of M&S’s reputation.
M&S has three trademarks relating to Colin, which M&S believes means that Colin has acquired and retains his own distinctive character. A trademark is a symbol, word or words used by a trader to distinguish its products or services from its competitors.
The Occurrence of Trademark Infringement
A trademark can be a brand name, a company logo, a trading style or even distinctive packaging. It can also consist of the shapes of products as well as slogans and straplines. Trademark infringement can occur if an infringer creates similar goods, which causes confusion to members of the public or takes unfair advantage of or is detrimental to the character or reputation of the trademark.
M&S is believed to have been the first supermarket to sell a caterpillar cake, but many supermarkets have since created their own similar products.
Other cakes include Waitrose’s Cecil, Sainsbury’s Wiggles, Tesco’s Curly and Asda’s Clyde the Caterpillar. Whilst M&S has not ruled out legal action against these other supermarkets, it is likely that M&S has targeted Aldi because Aldi has a reputation for creating products that look or sound similar to other brands. The fact that there are many other caterpillar cakes on the market may make it difficult for M&S to succeed in its claim.
If the Claim Is Successful
If M&S is successful in its claim, it could seek the following remedies:
- An injunction preventing Aldi from selling its Cuthbert cake in the future.
- The delivery up and/or disposal of Aldi’s Cuthbert cake.
- Damages for loss of sales or damage to goodwill or an account of profits in respect of the profits Aldi made in selling its Cuthbert cake.
- Recovery of its costs incurred in bringing the trademark infringement claim.
Here to Help
Our specialist Intellectual Property Disputes Team routinely advise on a broad range of disputes relating to trademarks, copyright, patents and design rights, along with matters relating to data protection and confidential information. If you would like further information or assistance, our Intellectual Property Disputes Solicitors would be happy to help. You can contact us on 0161 941 4000 or email The Intellectual Property Disputes Team for more information.