What Cuthbert the Caterpillar taught us …

Published on 11/05/2021

I hope everyone reading this will have witnessed the joy that has been Aldi’s social media account since M&S filed an intellectual property claim at the High Court over their imitation caterpillar cake. If not, let me fill you in.

The Colin the Caterpillar cake is a staple at any birthday party, celebrating any age. It sits in pride of place in Marks & Spencers’ cake aisle. Equally cherished by all in the UK are Aldi’s own brand cheaper imitations of such products.

A few weeks ago, Marks & Spencer decided it had had enough of Aldi’s clever imitations and accused Aldi of copying its iconic cake. M&S said Aldi’s Cuthbert the Caterpillar design infringed its Colin trademark. M&S also said it could lead shoppers to falsely believing the two products were sourced to the same standards.

If M&S are successful in court, they could stop Aldi selling the cake, or stocking anything similar in future.

Unfortunately for M&S – and despite being a fan of Colin – Cuthbert has become the underdog, the one we are all rooting for, thanks to some clever marketing on social media.

Aldi has taken to twitter to promote the hashtag “#freecuthbert”, roping in support from other major supermarkets, retailers and celebrities.

 

“@AldiUK: This is not just any court case, this is…   #FreeCuthbert”

 

Aldi has now announced their desire to release a limited-edition Cuthbert, and publicly asked M&S to join them in donating the proceeds of sales to their respective cancer charities; apparently to stone-cold silence from the other supermarket (although there was a formal response later).

 

“@AldiUK: Hey @marksandspencer can Colin and Cuthbert be besties? We’re bringing back a limited edition Cuthbert and want to donate profits to cancer charities including your partners @macmillancancer & ours @teenagecancer. Let’s raise money for charity, not lawyers #caterpillarsforcancer.”

 

This movement has translated into the real world with people knitting “#freecuthbert” hats for post boxes, which may be the most unusually British sentence you’ll read today.

Comparatively, Brewdog, the popular brewery and pub chain, also challenged Aldi for releasing an imitation Punk IPA (their staple). Rather than taking them to court, the two have instead collaborated on the “YALDI”, a beer made by Brewdog but branded in Aldi’s colours, generating profit for both parties. A win-win!

How is this relevant to your case?

M&S has emerged the “bad guy” in this very public battle, a risk which can be overlooked by parties engaging in litigation. Often, litigation is entirely necessary and proper, and there is no other option but to settle the matter once and for all in front of a Judge.

As barristers, we are uniquely positioned to appreciate the benefits of litigation, but we are uniquely placed to advise pragmatic approaches, too.

If you are a landlord who wants to recover unpaid rent but does not want to end up with a tenant who resents them; or a public body who wants to be seen to be tackling anti-social behaviour without alienating the community; feel free to ask for legal help before reaching court. It is not often as easy as we think to keep things neatly between the four walls of the court room whether you be a giant supermarket chain or two new small business partners.

The merits of a written or in person advice from a barrister before issuing proceedings, or at any stage during proceedings for that matter, are not to be underestimated. Litigation can be both a very public and a very personal, emotional process. Seeking expert advice can offer perspective at any stage in proceedings from pre-action to judgment.

Barristers are not only experts on the law, but we can also offer advice on practical approaches, case-planning, settlement, and damage limitation if necessary. Whilst it might be your first time in a particular situation, it is probably not ours!

Consider this a friendly reminder that we are always here to help and our clerks are just a phone call or email away (both Colins and Cuthberts welcome).

CREDIT: Emily Lanham