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You may have come across the brilliantly funny social media campaign from Aldi’s Twitter account #freecuthbert. Or even seen news articles from some of the UK’s top newspapers and tv shows about Colin the Caterpillar cake. We’re here to help make sense of it all.

 

What is Colin the Caterpillar cake? 

 

Colin the Caterpillar is a cylindrical sponge cake that’s encrusted with a hard chocolate shell and sprinkled with yet more chocolate candy and adorned with white chocolate feet and face. 

It was introduced to the UK market in the 1990s by Marks and Spencer in partnership with the cancer charity MacMillan. It’s currently sold for £7 and is at the centre of an Intellectual property dispute.

 

What is Cuthbert the Caterpillar cake?

 

Cuthbert the Caterpillar is a cylindrical sponge cake that is covered with a hard chocolate shell, sprinkled with chocolate candy and finished with a white chocolate face and feet. Sounds familiar, doesn’t it? And was available at Aldi for £5 until February 2021.

 

So, what’s all the commotion about? 

 

Many of you will recognise Colin and Cuthbert, and some other variations on the caterpillar-shaped delicacies offered by other supermarket chains across the country. They’re all much enjoyed by many in the UK, including several of our very own employees! 

However, because there are so many similarities between Colin and Cuthbert, Marks and Spencer’s concern is that Aldi is taking advantage of its reputation of producing high-quality food items, in this case, Colin the Caterpillar cake, by offering a very similar-looking cake under its own brand. 

Therefore, Marks and Spencer bit the bullet and lodged a claim with the High Court against Aldi for infringing on the Colin-related trademarks that Marks & Spencer owns.

Naturally, Marks and Spencer are seeking for Aldi to remove the Cuthbert the Caterpillar cake from their stores and to refrain from selling anything similar in the future.

Although Aldi has just announced its plans to bring back a limited-edition Cuthbert cake and to donate the profits to several cancer charities, including Macmillan which is already partnered with Marks and Spencer’s Colin.

 

What expert trademark Attorneys LegalZoom have to say:

Without having a trademark or other protection in place for the particular shape and features of the cake, Marks and Spencer faces an uphill struggle to prove its case. But it is a fight worth fighting and one that promises heaps of entertaining posts and tweets along its way.

Social media hype aside, this situation highlights that protection of one’s intangible assets often require complex solutions, in particular where the product’s popularity is attributed to its recognition which is heavily based on the product’s looks rather than simply the brand name.

So, thinking out of the (cake) box when creating a strategy for a successful brand is a must!

It is yet to be seen who will prevail in this case, but the silver lining is already shining through as it seems that sweet crumbs of this dispute are already benefiting the few cancer charities that both caterpillars are so eager to be associated with.

If you’re looking to register a trademark, look no further – LegalZoom’s trademark attorneys are experts in their field and are here to provide you with the best advice that will not break the bank. Click here to find out more.

 

More about other food product trademarks disputes 

 

Companies, including those that produce food products, typically trademark their product’s name, logo or slogan as these represent their brand and reputation. However, something that food product companies seem to be struggling with trademarking is their product’s shape and colour. 

Nestle had their trademark for their famous 4 fingered KitKat chocolate bar annulled in 2018 after years of battling with chocolate giant Mondelez (who own Cadbury, Milka, Oreo and Toblerone). 

In 2012, the EU court of justice refused to register Lindt’s trademark for their famous chocolate rabbit adorned in gold foil and a red ribbon with a bell for it not being distinctive enough to perform a trademark function. 

More recently in 2019, Cadbury was forced to give up its trademark on a specific shade of colour purple (Pantone 2865c), despite winning a case in 2012 to stop other companies from using the colour. It was deemed that the trademark lacked “clarity, precision, self-containment, durability and objectivity to qualify for registration”.

If you have any questions about a trademark for your company, LegalZoom’s customer support team are ready to help.