As most people will know, M&S have brought court proceedings against Aldi in relation to Aldi’s ‘Cuthbert the Caterpillar’ cake. Apparently, it was as long ago as 1990 that the now famous caterpillar cake was first sold by M&S, and it claims to have since manufactured 15 million caterpillar cakes under the names of ‘Colin the Caterpillar’ and his female counterpart ‘Connie the Caterpillar’. Following their huge success, in 2008 and 2016 respectively, M&S protected those brands as UK trademarks, which M&S now claim Aldi have breached with the sale of their own brand “Cuthbert the Caterpillar”, who bears a striking resemblance to the M&S original.

A trademark can be any sign that identifies you as the owner of your goods or services to make it clear they belong to you and gives the owner of a trademark exclusive use of that sign. Many things can be registered as a trademark, but names and logos are the most common, however a trademark can be anything that allows consumers to distinguish a business’s goods or services from those of another.

Trademark registration gives the owner the right to sue anyone who uses an identical or similar mark in the course of trade, without the owner’s consent, for infringement as is the case with M&S and Aldi. For M&S to succeed, they will have to prove that Aldi’s Cuthbert the Caterpillar cake has caused or is likely to cause confusion to consumers.

M&S may also argue that Aldi’s Cuthbert the Caterpillar cake amounts to passing off. Passing off is a common law offence which can protect any goodwill associated with unregistered rights, which can include the appearance of a product. In this case M&S would need to show that Aldi’s Cuthbert the Caterpillar cake has damaged, or has the potential to damage, their goodwill in Colin the Caterpillar.

The Court’s decision will depend on whether it believes confusion between the products was likely at the time when Cuthbert the Caterpillar cake was sold and whether Aldi is benefitting commercially by bringing a confusingly similar product to the market.

Interestingly most other supermarkets have also created their own similar product. The UK’s ‘big four’ supermarkets have been selling similar style cakes for some time under the names ‘Curly the Caterpillar’, ‘Wiggles the Caterpillar’, ‘Clyde the Caterpillar’ and ‘Morris the Caterpillar’, all of which are Caterpillar shaped cakes. It remains to be seen if M&S will also issue legal proceedings against these brands.

Regardless of the outcome some may say that this is a shrewd move from M&S due to the significant publicity and media attention this legal battle has created.