If like me you’re keeping up with the caterpillars, you’ll know the latest storm to hit social media and the legal world.

An overview – Colin v Cuthbert: Intellectual property law

For those of you who may not know, on 15 April 2020 Marks and Spencer (M&S) initiated legal proceedings with the High Court against rival supermarket chain Aldi, accusing the company of infringing its trademark ‘Colin the Caterpillar’ cake. Colin has been around since 1990, selling more than 15 million cakes and has been unchanged since 2004. M&S registered Colin as a trademark in April 2009. For background, Colin and Cuthbert are family-friendly cakes that feature a milk chocolate and buttercream sponge, topped with a smiling chocolate face and sweets.

What is intellectual property law?

As legal professionals or law students, we tend to focus on important commercial issues to increase our awareness. Understanding this area of law and how it interacts with our economy will be important to most clients. First, the main types of intellectual property are:

• Copyright (protects authorship – Copyright Designs and Patents Act 1988);
• Trade secrets (protects secret information – Trade Secrets (Enforcement, etc) Regulation 2018);
• Patents (protects functional and ornamental features – The Patents Act 1977); and
• Trademarks (protects brands – Trade Marks Act 1994).

As long as the idea falls into one of these types, it has the potential for protection to achieve the availability of a wide variety of goods. This makes it easier to launch legal proceedings against anyone who steals or imitates your creation. Depending on the parties involved, intellectual property can be bought, sold or licensed.

From an economic point of view, Aldi’s lower pricing is attractive. Aldi has also in the past acknowledged that it creates products that are similar to other brands to trigger consumer purchase – a well-known marketing psychology strategy. The argument will stem to whether the similarities will leave consumers confused in the marketplace.

How has intellectual property law been applied?

In this case, there is a copyright and brand encroachment claim. To put it simply, ‘copyright’ allows the original creators of a product to prevent others from copying and reproducing their work, while ‘brand encroachment’ refers to the marketing effect which involves taking the right of another brand to drive sales. For example, M&S claimed that Aldi’s Cuthbert the Caterpillar “rides on the coat-tails” of the supermarket’s reputation.  

M&S has argued that Cuthbert’s similarity with Colin has led consumers to believe they are of the same standard. Given the alleged similarities, M&S has called for the permanent removal of Cuthbert from its shelves and for Aldi to “agree not to sell anything similar in the future”. 

I must note that Aldi isn’t the only supermarket with its own caterpillar cake; Sainsbury’s ‘Wiggles’, Waitrose’s ‘Cecil’ and Tesco’s ‘Curly’, to name a few, have all been introduced over the years. The impact that this claim will have on other supermarkets’ caterpillar cakes will be interesting to watch as M&S is yet to rule out going after these other retailers. Looking back at the tort law days, it wouldn’t be out of place to suggest that if the ruling is in favour of M&S, that this could open the flood gates.

Defending themselves, Aldi said: "Cuthbert has been found GUILTY... of being delicious" and tweeted in light of the situation saying: “This is not just any court case, this is… #FreeCuthbert”.

There are interesting arguments from both sides. Now it’s time for you to be the judge.