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It is unusual for an intellectual property case to capture the imagination of the public. Nevertheless, Colin and Cuthbert (both caterpillar-shaped cakes) are the subject of trademark infringement proceedings launched by M&S against rival Aldi in the High Court in London this week and the story has made front pages and featured in National news broadcasts.  Going by my social media feeds, Colin has a legion of die-hard fans.

Colin the Caterpillar cake has been a staple of party fare for kids and big kids alike for many years.  Several competitors have produced similar items without attracting the wrath of M&S’s legal team; however, in Cuthbert, Aldi have (on M&S’s case) gone too far.

M&S have the protection of a registered trademark and, whilst the mark used on the Aldi version is not identical, the law also provides protection where a similar mark is applied to identical or similar goods.  M&S will have to establish a likelihood of confusion as to the origin of Aldi cake; this could prove challenging.  They may seek to rely on the reputation enjoyed by their trademark which could be infringed if Aldi have gained an unfair advantage to the detriment of the M&S mark.  Colin certainly does have a reputation to protect! 

The Intellectual Property team here at Mills Selig will watch with interest to see whether the High Court sides with team

#OGColin or team #FreeCuthbert???

Editorial prepared by: Kirsten Magee, Partner, Mills Selig

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