Colin vs Cuthbert: M&S takes legal action against Aldi’s caterpillar cake

Marks and Spencer’s “Colin the Caterpillar” cake is a children’s birthday staple and the supermarket is in no mood to let rivals to crash the party.

M&S is taking legal action against Aldi, saying it has infringed multiple trademarks with its “Cuthbert the Caterpillar” cake, in the latest in a series of such complaints against the discounter.

Papers filed at the High Court on April 14 state that the design of the cake and its packaging, which closely resembles its Colin product, infringe its trademarks and call on its rival to desist from selling Cuthbert.

The British retailer said “love and care goes into every M&S product on our shelves” and it wanted to “protect Colin, Connie and our reputation for freshness, quality, innovation and value.”

More than 15m Colin cakes have been sold since it was launched in 1990, and the lepidopteran larva — and its female version Connie — have been turned into a wider range including cupcakes, trifles, sweets and chocolates.

Intellectual property lawyers said M&S would need to be able to prove that the appearance of Colin was so well known that consumers would recognise it as being an M&S product without any other cues.

“Colin is certainly iconic, and it seems highly possible that M&S will be able to show goodwill”, said John Coldham, IP partner at law firm Gowling WLG. “So the question will be whether Aldi’s product is close enough to cause confusion in the marketplace”.

Other supermarkets, including Tesco, Asda and Sainsbury, also produce caterpillar-shaped celebration cakes in green packaging.

Aldi has in the past acknowledged that it seeks to produce own-label products that bear a close enough resemblance to branded equivalents to trigger purchasing decisions.

Its own-label version of Kellog’s Krave cereal is branded Kraze, for instance, while its caramel wafer bars look similar to those that Lanarkshire-based Tunnock’s have been making since 1952.

In 2018, family-owned sausage-maker Heck described the company as a “parasite” for imitating the packaging of its Chicken Italia range. In response, Aldi maintained the packaging was consistent with its own established brand, which was clearly recognisable to customers.

Last year, Aldi launched an “Anti-Establishment IPA” clearly modelled on Punk IPA, the mainstay product of BrewDog. However the two companies subsequently reached agreement and the brewer now produces “ALD IPA” that is sold in the supermarket.

Aldi suffered a legal defeat in 2019 when make-up brand Charlotte Tilbury used copyright law to argue that the supermarket’s own-label powders were too similar to its own.

The German-owned supermarket also frequently crosses swords with Britain’s advertising watchdog over its pricing claims. In one case in 2019, Tesco successfully argued that an advertisement unfairly compared a bottle of Moet et Chandon champagne to a much cheaper Aldi own-label version in order to skew a price comparison of a “typical weekly shop” in the discounter’s favour.

Aldi did not immediately respond to a request for comment.