Anyone who has ever hosted or been to a child’s birthday party would have heard of M&S’ famous ‘Colin the Caterpillar’ birthday cake, boasting a Chocolate Swiss roll centre, chocolate covered outsides and chocolate smartie decorations, all in the shape and theme of a caterpillar.
Having been such a fan favourite among birthday party go-ers, and having been around since the 1990s, it comes as no surprise that other large Supermarkets wanted to jump on the trend and create a similar style product. Although, with more than 15 million Collins sold, this confectionery treat is one of M&S’ key food offerings, alongside their famed pink ‘Percy Pig’ sweets. The fame of this cake has also led to brand extensions, including a ‘Connie the Caterpillar’, a girlfriend cake of Colin’s.
Here enters Aldi, and their ‘Cuthbert the Caterpillar’ birthday cake, which features similar shaping, designs and flavours, and has the most obvious element of the mirroring names.
The original conflict began back in April of 2021 when M&S launched a Copyright infringement claim against Aldi for their similar birthday cake. Within this claim, M&S’ main priority was to force Aldi to take its Cuthbert’ cake off of the shelves, and to prevent them from selling anything that resembles the character in the future. However, shortly after, in May of last year, ‘Cuthbert’ made a swift return to the supermarket after Aldi’s brief changes to its face’s design.
M&S stated that their objective of the claim was to protect the ‘Intellectual Property in our Colin the Caterpillar cake’, with a spokesperson adding how ‘Like many other UK business, large and small, we know the true value and cost of innovation and the enormous time, passion, creativity, energy and attention to detail, that goes into designing, developing and bringing a product to market and building its brand over many years.’
With the dispute continuing throughout last year and into the early months of this year, it comes as a shock that an agreement has finally been met between the two supermarkets within the High Court, ultimately concluding the cake wars. However, details of the deal have not been revealed, with both parties confirming that the ‘confidential’ information will not be released. Although, we are aware that Cuthbert is not due to appear again in the same form after Aldi’s recent cryptic tweet on the social media site, Twitter, which indicated that Cuthbert could be returning to their shelves sooner than we expected. The tweet read ‘#freecuthbert: “Getting out early on good behaviour, keep an eye out for Cuthy B this Spring.”
We are now all left questioning whether M&S will launch proceedings against the other big-name Supermarkets who sell similar cakes to ‘Collin’. Some of these include Tesco’s ‘Curly the Caterpillar’, Asda’s ‘Clyde the Caterpillar’, Sainsbury’s’ ‘Wiggles the Caterpillar’, and Waitrose’s ‘Cecil the Caterpillar’, all of which present similar designs, tastes and themes as well.
M&S and Aldi also continue to be engaged in a separate dispute regarding allegations over a ‘Light-Up’ Christmas gin liquor that has yet to be concluded.
Keep an eye out on the Lawdit Reading Room to keep updated on these possible future infringement claims. If you have any questions concerning the topics in this article, please don’t hesitate to get in contact with the team at Lawdit Solicitors today.