Trademarking: the case of Colin v Cuthbert

The battle between Marks & Spencer and Aldi over their respective caterpillar cakes has hit the High Court. This is not just any cake, says M&S. We look at trademarking.

Cake symbolising trademarking: the case of Colin v Cuthbert

This is not just cake…

You may have seen in the news the battle that is about to begin between Marks & Spencer and Aldi over their Colin and Cuthbert caterpillar cakes.

The two caterpillar cakes have a remarkably similar design – both have a near identical face, a hard chocolate shell and decorated with similar sweets.  However, the Aldi caterpillar is being sold at a much cheaper price and Marks & Spencer is concerned that the cheaper version may be attempting to ride off the back of their ‘high quality’ food reputation.

This is M&S cake

Marks and Spencer is concerned that consumers may be confused between the two caterpillar cakes and if someone is eating an Aldi Cuthbert they may be mistaken into thinking it is in fact a Marks & Spencer Colin.  This could damage their reputation and brand of being a high quality food retailer.

To prevent brand damage, Marks & Spencer have launched an intellectual property claim in the High Court using their registered trade marks as armoury.  A portfolio of registered trade marks is always a good starting position to help prevent your brand from being diluted.  It can assist in preventing someone else riding off the back of your reputation and taking advantage of the goodwill you have built up in your company, products and services.

The importance of trade marks

Marks & Spencer will be using their registered trade marks to try and prove that Aldi are committing trade mark infringement.  Marks and Spencer will need to show that Aldi is using a similar mark to their registered trade mark(s) and that this would be likely to confuse the public.  They will, alternatively or in addition, need to show that Aldi’s use of that similar mark takes unfair advantage of, or is detrimental to, to the distinctive character of their registered trade mark(s).

We now wait to watch this food fight unfurl – #SaveColin or #FreeCuthbert? Cake and protecting brands… just two of my favourite things.

For more information about trade marking your brand or business our commercial team can help.

This article was written by Clare Veal

Please note the contents contained in this article are for general guidance only and reflection the position at time of posting. Legal advice should be sought before taking action in relation to specific matters.

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