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Caterpillars In Court: M&S V Aldi

April 16, 2021 Civil Litigation,Covid-19

M&S have taken legal action in the High Court in England against Aldi in an effort to “protect” beloved Colin the Caterpillar. Colin the Caterpillar even has his own Instagram account and charity partner so arguably, has an established brand and internet presence, as well as a strong public following.

In 2019 Aldi launched Cuthbert the Caterpillar. Cuthbert looks very similar to Colin but has a lower price point. M&S, therefore, believe that Aldi are profiting from Colin’s popularity and consumers will be more likely to buy Cuthbert simply because he costs less than Colin.

So, do M&S have a leg (many legs in the case of a caterpillar) to stand upon legally? In order to prove any wrong doing on the part of Aldi, M&S will have to rely upon the strength of their trade marks. If M&S haven’t already, they may have to register Colin as a 3D trademark to prevent other’s copying his shape going forward. The main point of contention in this case is likely to be whether consumers will, in practice, become confused by the existence of the two cakes and whether customers will set out to purchase Colin based upon long standing public adoration, but instead purchase Cuthbert because he appears to be so similar. Ultimately, the court is likely to base its decision upon whether Aldi has purposely created a product so similar to Colin in order to benefit commercially.

In recent years, we have seen many organisations take legal action against competitors for producing similar products. Although M&S were not the first to raise an action like this, it is likely to be the first time caterpillars have been in court! The action M&S have taken against Aldi simply reinforces the importance of fully protecting your intellectual property. The best way to do this is to consult with a solicitor in the first instance in order to protect your business from the outset.

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