M&S has started legal proceedings against Aldi. M&S claims Aldi's Cuthbert The Caterpillar is too similar to its Colin The Caterpillar.
For around 30 years, Marks and Spencer has sold the Colin The Caterpillar cake, but many other U.K. supermarkets have also sold similar cakes. For example, Asda has sold Clyde The Caterpillar, Waitrose has sold Cecil The Caterpillar, and Sainsbury’s has sold Wiggles The Caterpillar.
In April 2021, Marks and Spencer initiated legal proceedings against Aldi over its Cuthbert The Caterpillar. The retailer reportedly claimed that Cuthbert The Caterpillar "rides on the coat-tails" of M&S's reputation.
The move has both confused and amused many. Some have pointed out that M&S hasn’t started legal proceedings with any other supermarkets over their caterpillar cakes. Others have suggested that the move is just for publicity. As of April 19, the hashtag #FreeCuthbert has been trending for days.
Interestingly, Marks and Spencer put a ™ symbol next to their use of the words “Colin The Caterpillar.” According to the British Library website, this symbol indicates that M&S is using Colin as a trademark but that this trademark is currently unregistered. The little ™ symbol does not have the legal standing that the little ® symbol does, as the little ® symbol means that a trademark is registered.
According to the Financial Times, "Intellectual property lawyers said M&S would need to be able to prove that the appearance of Colin was so well known that consumers would recognize it as being an M&S product without any other cues."
UPDATE: Marks and Spencer and Aldi have since settled this case. The details of the agreement are confidential. However, on February 1, 2022, the German retailer's official Twitter account posted the following: "Getting out early on good behaviour, keep an eye out for Cuthy B this Spring." This strongly suggests Aldi is reintroducing Cuthbert to its stores.
The two retailers are still in dispute over Aldi's clementine and blackberry gold flake gin liqueurs, which, according to the Independent, are allegedly similar to a gin liqueur from Marks and Spencer released last Christmas.