The Colin v Cuthbert dispute has made a mockery of M&S’ intellectual property rights – Conservative Article
If like me, you have grown up in the U.K., then it is highly likely that you have celebrated with a Colin the Caterpillar cake at some point. I distinctly remember my childhood friend having it annually at her birthday parties. It was a centrepiece for many of our childhoods.
Colin has subsequently become a central part of branding for M&S since its creation in 1990. As a result, M&S filed an application to trademark the popular cake. In 2009, Colin was trademarked in the U.K and the EU under class 30.
M&S have recently been heavily discussed across social media due to their public dispute with the supermarket Aldi. M&S are rightfully suing Aldi for their knock-off version of Colin: Cuthbert the Caterpillar.
It is likely that M&S will utilise Section 10(3) of the Trade Marks Act 1994 in pursuit of suing Aldi. To do so they would need to prove that Aldi’s Cuthbert “takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the trademark”, amongst other criteria. The act of “affixing a sign identical with, or similar to, the trademark on packaging, labels, tags, security or authenticity features or devices, or any other means to which the mark may be affixed” poses a threat to the trademark. It is undeniable that Aldi’s Cuthbert does exactly this.
You might be thinking, why are M&S specifically targeting Aldi? Why have they not gone after the various supermarket knockoffs over the years? Tesco’s Curly, Asda’s Clyde and Sainsbury’s Wiggles are all based on the idea of a chocolate caterpillar cake with a friendly face on it. So why Aldi?
The distinct design of Colin the Caterpillar has been clearly altered by the other supermarkets previously mentioned. They vary in colour, design and packaging, making it evident that the product is not the same as Marks and Spencers’.
Aldi’s product, however, has a very similar design to the original cake, posing a risk of reputation for M&S. When the packaging is removed at a party, for example, the Aldi version of the cake could be mistaken for M&S’ cake. Colin is closely tied with the branding of M&S; if people were to dislike the Aldi version of the cake, yet assume it was from the original brand, it could tarnish the reputation of M&S.
Upon a first glance, it may sound trivial. But the Colin the Caterpillar cake has become a core part of branding amongst M&S. As a company they are completely within their rights to protect their intellectual property in the way that they are.
The intellectual property dispute has flooded the internet, particularly through Aldi’s social media. Aldi’s PR team have posted a series of tweets aimed at M&S. Some of which include: “Hey Marks and Spencer we’re taking a stand against caterpillar cruelty. Can Colin and Cuthbert be besties?” Additionally, they targeted the integrity of the company when they tweeted “We’re bringing back a limited edition Cuthbert next month and want to donate all profits to cancer charities including your partners Macmillan Cancer Support and ours Teenage Cancer Trust”.
Aldi’s PR team has continued to target the integrity of M&S through their social media by turning the IP dispute into a virtue-signalling competition. This alone is absurd considering the fact that M&S has a partnership with the cancer charity Macmillan and has even created a Colin product for the World’s Biggest Coffee Morning fundraising event. Furthermore, the company has made a mockery of M&S’ intellectual property rights, trivialising the importance of trademarking, whilst publicly targeting the ethics of the company.
This is not the first time that Aldi has come under fire for its invasion of intellectual property rights. In 2014, “Icelandic Seachill took on Aldi, accusing the supermarket of infringing its trademarks. Icelandic was granted a preliminary injunction and Aldi removed the offending products from its shelves before the companies settled out of court.” Aldi’s business model is based on pushing the boundaries of intellectual property. They have been caught out before and it is likely they will be caught out again.
Ultimately, as trademarks are used more frequently, trademark infringement increases too. Companies like M&S must be ardent with their intellectual property as a result in order to protect their rights, especially as the market becomes more and more competitive. When companies like Aldi continue to mock the legal framework of intellectual property through their PR, they simply gain more leeway to steal ideas from other companies in the future.
Written by Senior Conservative Writer, Rebecca Selt
Point of Information
‘Let Them Eat Cake’ – A Liberal Response
Rebecca’s passion for M&S’ infamous, and equally delicious, caterpillar cake is evident. I am sure her love for Colin is shared by many, including myself. He is an iconic British cake and rightly deserves to sit among the other great British baked goods, such as Victoria Sponge and sticky toffee pudding.
That said, as tasty as Colin is, in my eyes, this whole issue still remains entirely trivial. At the end of the day, cake is cake. It matters not whether it sits in a box embossed with the M&S seal or the Aldi logo. As long as it’s served alongside party rings and cheese and pineapple cocktail sticks, children’s birthday parties will remain unscathed. Colin or Cuthbert, it’s all the same in the hungry bellies.
Of course, Rebecca has presented many sound legal arguments, yet I still am not convinced. Supposedly, Cuthbert shares more similarities with Colin than all other caterpillar cakes on the market. However, to me, Sainsbury’s ‘Wiggles’ looks as much the same as Cuthbert does. Maybe to the untrained eye, the differences are hard to spot. But I have eaten enough caterpillar cakes to call myself a bit of a connoisseur of the issue. So why has Cuthbert come under fire whilst Wiggles remains free?
Ultimately, I personally have enjoyed the memes of this whole drama far too much to even begin to take this issue seriously. I do not think I am alone in this. But on a more serious note, memes aside, I struggle to understand why some people are taking it so soberly. I say, let them eat cake, whether that be Colin, Cuthbert or one of the many other tasty alternatives.
Written by Senior Liberal Writer, Beccy Reeves
Cake is Cake – A Labour Response
Rebecca’s article highlights some key legal issues of the caterpillar cake debate. Of course, it is important for companies to respect others’ integrity and property; laws ensure that sales are fair to avoid disorganisation and ultimately the theft of ideas. However, this specific matter is pretty trivial and it’s not hard to reach this conclusion – just take a look at Aldi’s Twitter account and the countless memes that have arisen from this dispute.
Most of us have had or tried a caterpillar cake, as both Rebecca and Beccy say. Personally, I don’t care which supermarket it’s from. Chocolate cake is chocolate cake. I’m also confident in saying most of us would refer to any version as ‘Colin’. And I’m also confident that no one would jump to condemning M&S if they had a bad slice of cake.
In fact, I’m sure a lot of us are happy with the cheaper alternatives. Aldi is known to be a much cheaper supermarket and its products – whether it be cake or a loaf of bread – prove accessible to a larger amount of people. If we’re making this a serious issue this is what we should be talking about. I wonder how many kids have asked for a Colin the Caterpillar cake and their parents were thankful for a cheaper alternative. My guess is quite a lot. And of course, cake isn’t the only cheaper alternative at Aldi.
I still stand by this being a rather trivial dispute. If you want to make it serious though, let’s look at the accessibility of supermarkets and their products. You’d certainly have a much larger dispute.
Written by Chief Labour Writer, Abi Clargo