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.
[vc_row][vc_column][vc_column_text]What do you get for that difficult-to-buy-for family member at Christmas? We’ve all been there, and chances are a fair number of us have ended up buying some sort of store gift voucher. It’s a simple but useful option that everyone appreciates!
Against the backdrop of reports of some high street retailers going through difficult times, it’s worth bearing in mind that if the retailer whose gift vouchers you have bought ends up in insolvency, administrators routinely refuse to honour the vouchers. Instead the voucher holders are treated as if they are unsecured creditors of the company. In practice, this means that they will receive only pennies in the pound, if anything at all. This happened most recently a few months back when House of Fraser went into administration.
The problem can also extend beyond gift vouchers to goods which have been purchased online and paid for, but which have not been delivered at the time the retailer enters administration. In legal terms, “property” in the goods has not yet passed from the retailer to the buyer – it does so at the point of delivery – and so the administrators are entitled to say that the goods still belong to the company.
So, can anything be done to reduce the risk?
The most obvious step is for the recipient to use the vouchers sooner rather than later, minimising the risk of the retailer becoming insolvent.
However, there is another method that can be used in higher value purchases. If the present-giver has used a credit card to purchase the vouchers, the Consumer Credit Act 1974 provides a degree of protection where goods have been ordered and paid for, but which are not delivered. As long as the transaction value was between £100 and £30,000, the card issuer would be required to refund pre-payments.
Additionally, Visa and MasterCard both operate card schemes which provide that in circumstances where goods have been ordered and paid for but the retailer goes into administration before they are delivered, the payment debited to the card holder will be charged back and refunded. In this case, there is no minimum transaction value.
Ultimately, if you really are stuck on what to get that person who is a nightmare to buy for, the easiest way to minimise risk is to pay using a credit card rather than cash.
If you are seeking further advice on an issue with gift vouchers or cards this Christmas, or if you need help with any of the other legal issues we cover, then feel free to get in touch. You can call us on 01782 652300. You can also drop us an email at lawyers@tinsdills.co.uk. [/vc_column_text][/vc_column][/vc_row]
We reported back in 2015 on the Court of Appeal’s decision in the case of Ilott –v- The Blue Cross & Others.
The detailed background is set out in the previous report but, in brief, the case related to a claim made by Heather Ilott that the will left by her mother, Melita Jackson, failed to make reasonable financial provision for her. Mrs Ilott, now in her fifties, had left home with her boyfriend at the age of 17 and had been estranged from her mother since then. The will had left nothing to Mrs Ilott and had instead made various bequests to animal charities.
The claim was made under the provisions of the Inheritance (Provision for Family & Dependents) Act 1975, which gives power to the court in certain circumstances to vary the terms of a will if it fails to make reasonable financial provision for a surviving spouse, child or someone who has been maintained by the deceased during their life.
The Court of Appeal had substantially increased the amount awarded to Mrs Ilott by the District Judge at first instance, from £50,000 to £163,000. The charities sought to appeal the decision of the Court of Appeal to the UK’s highest appeal court, the Supreme Court.
Handing down their judgment on 17th March 2017, the seven Supreme Court justices unanimously agreed that the Court of Appeal’s decision should be reversed and the original ruling to award Mrs Ilott £50,000 restored.
Giving the main judgment, Lord Hughes said the decision of the Supreme Court confirms existing case law that an appeal would not succeed unless the judge made an error of principle. He commented that “Neither side can make the appellate court start again from scratch. This is a general rule that applies to this case and many others”.
Interestingly, and quite unusually, Lady Hale – the Deputy President of the Supreme Court – added a separate supplemental judgment of her own, even though she had agreed with the main judgment of the court. She commented that she had done so “only to demonstrate what, in my view, is the unsatisfactory state of the present law, giving as it does no guidance as to the factors to be taken into account in deciding whether an adult child is deserving or undeserving of reasonable maintenance.”
Highlighting the uncertainty created by the law as it stands, Lady Hale pointed out that it would have been entirely open to the District Judge who heard the case originally to have reached one of three widely differing decisions, each of which would have been legally correct and difficult to challenge even though they were very different in their effect on Mrs Ilott:
he could have declined to make any order at all. Mrs Ilott was self-sufficient – albeit largely dependent on benefits – and had been so for many years. She had no expectation of inheriting anything from her mother. She had not looked after her mother. She had not contributed to the acquisition of her mother’s wealth.
he could have decided to make an order which would have the dual benefits of giving Mrs Ilott the financial security that she needed and sought and in doing so also saving the public purse the most money. That is in effect what the Court of Appeal sought to do, by ordering the estate to pay enough money to enable Mrs Ilott to buy the rented home in which she lived, and a further lump sum of £20,000 to draw down as she saw fit in due course.
he could have done what in fact he did, for the reasons that he did. He concluded that an income of £4,000 per year would provide her with her “share” of the household’s tax credit entitlement and capitalised this in a rough and ready way, taking into account some future limited earning potential, at £50,000.
Each of those would have been a perfectly proper exercise by the District Judge of his discretion on the evidence available to him at the original hearing, despite the very difficult outcome as far as Mrs Illot was concerned.
Lady Hale went to lament the fact that the Law Commission – the statutory independent body created to keep the law of England and Wales under review and to recommend reform where it is needed – had failed to reconsider the fundamental principles underlying claims of this type such as this when it last looked at the law in this area in 2011.
The Supreme Court’s decision is regarded by many as a victory for the general principle of testamentary freedom – or in other words, the right to leave whatever you want in your will to whomever you want. That right however can never be absolute, and it was for that reason that the Inheritance Act was passed in the first place – in order to ensure certain safeguards were put in place to allow the courts to make provision for immediate family and those who had been dependent on the deceased.
However, it does seem to support the general propositions that there should not be an automatic assumption that an adult child should always expect to inherit all or even the bulk of their parents’ estate, and that the Inheritance Act should not and will not be allowed by the courts to be used as a basis for disgruntled adult children to challenge their parents’ testamentary freedom, just because they consider the provisions of the will to be unfair.
In the meantime, pending a further review of the law in this area, it will remain the case that it is not always straightforward to advise an adult child on whether they might have a claim in circumstances where they believe that a parent’s will fails to make reasonable provision for them.
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