Time to decide: Team Colin or Team Cuthbert?

19 Apr 2021

There is nothing a trade mark lawyer loves more than a big juicy brand-on-brand fight. Apple v Samsung. Nestlé v Cadbury. Our work makes the news and we get to wax lyrical on our favourite subject…preferably with a glass of something in one hand and a tasty morsel in the other.
The battle that hit the newsstand last week already has the makings of an interesting case: Marks & Spencer v Aldi in the battle of the caterpillar cake. M&S has initiated an intellectual property claim with the High Court against Aldi stating that Aldi’s Cuthbert chocolate caterpillar infringes their beloved Colin. With scant information, the internet is alive and everyone is talking about this next skirmish.
However, in a curious twist, Aldi is bringing the fight to social media. Shortly after the news broke, Aldi tweeted “This is not just any court case, this is… #FreeCuthbert”, playing on M&S’ iconic marketing style. Tweets using the hashtag have been shared thousands of times, re-tweeted by other brand names and created quite the following. One clever tweet gathered a whole army of supermarket caterpillars together – Cuthbert is by no means the first – only to get a response from Morrisons with major FOMO.
It’s interesting because we don’t normally see this reaction. Aldi appears to be trying to bring the public on side, to highlight that Cuthbert isn’t the first pretender to the chocolate caterpillar throne since Colin made his debut in 1990. Is this part of the defence, to show that there is no confusion?
In order to prove trade mark infringement of Colin (if that is the M&S argument), M&S will need to demonstrate that the public will be confused as to the origin of Cuthbert the Caterpillar and possibly confuse Cuthbert with Colin – or vice versa.
If not, then Aldi are playing a risky hand by antagonising an already angry opponent. But this isn’t Aldi’s first rodeo – anyone remember The Saucy Fish case? Aldi have clearly proven that Cuthbert isn’t going to go quietly into the night.
It will be fascinating to see how this crystallises in the courtroom – if we get that far. 
In the meantime, are you Team Colin or Team Cuthbert? I, for one, would be happy to undertake a taste test – in the name of trade mark infringement analysis of course.  

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