In the court of marketing, Aldi’s #FreeCuthbert tweets have won hands down against “Marks and Snitches’” IP claims (as Aldi referred to the great M&S). The IP battle relates to the similarities (or not) between the two caterpillar cakes.
Go to Aldi and you’ll see many cleverly familiar products. Lurpak? No, it is Norpak?!
When Aldi made an IPA beer that looked pretty similar to one produced by BrewDog, BrewDog responded with an IPA beer of its own called ‘Yaldi’, in similar get-up to Aldi’s product. Aldi asked for a crate, but with a change of name to “ALD IPA” BrewDog duly obliged. Great fun and great publicity for all.
To the marketing world, M&S look like party poopers. And that’s before anyone looks at the law.
Caterpillar cakes abound. Every supermarket has one.
In its announcement, M&S complains that Aldi’s Cuthbert “infringes its trademarks and amounts to passing off due to its substantial similarity with the iconic M&S Colin the Caterpillar.” It wants Cuthbert fed to the birds and never reproduced.
M&S has a trademark for the name ‘Colin the Caterpillar’ but ‘the caterpillar’ is simply descriptive, so we don’t think that M&S will have much luck there. So are the names, Colin and Cuthbert, that confusingly similar that they will confuse customers? We think not.
As for the packaging (for which M&S has a visual trademark), Cuthbert and Colin seem very different, both the colours and lay out. Other supermarkets have packaging which bears a greater resemblance, but M&S has not sued them (yet?).
Perhaps M&S will get home on their ‘passing off’ claim? M&S will need to show goodwill exists in Colin – which it probably does after over a quarter of a century on the shelves. The big ‘but’ is whether a consumer would mistake Cuthbert for Colin? Afterall, there are colouring similarities between the two. The trouble is there are so many caterpillar cakes, would a consumer really think it was buying the M&S one from Aldi?
Then there is the Aldi reputation for poking fun at other retailers and products. Knowing that, would a consumer believe that it was in on the joke, or believe that the situation was being misrepresented by Aldi? Our guess is that there will be a boringly confidential settlement (most cases settle). This will not please the marketing teams but at least the awful jokes will stop.