Thursday, October 28, 2021

‘Cuthbert the Caterpillar’ trademark row could have deeper consequences for industry

Aldi is being sued by Marks & Spencer over claims that its ‘Cuthbert the Caterpillar’ cake infringes the latter’s ‘Colin the Caterpillar’ trademark. However, this could have deeper consequences for the industry.

Carys Thompson, partner at law firm, Keebles LLP, said: “M&S has three registered trademarks relating to its Colin the Caterpillar cake. The company lodged an action against Aldi in the High Court last week claiming that the similarity of Aldi’s lower priced Cuthbert the Caterpillar cake infringes M&S’s trademark.

“M&S argue that despite being a lower-priced product, it leads consumers to believe the Aldi cake is of the same standard as M&S’s Colin the Caterpillar cake and ‘rides on the coat-tails’ of M&S’ reputation.

“The verdict will depend on whether the High Court decides that Aldi is seeking to benefit commercially by bringing a confusingly similar product to market.”

The case raises questions about retailers selling similar products which are closely related to those sold by competitors but are branded up differently in an attempt to avoid trademark issues such as this.

Ms Thompson said: “This will be an interesting case to follow. If M&S is successful, it will be interesting to see whether the company takes action against other retailers that have created their own similar products or whether those retailers remove their products from sale.”

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