Caterpillar cake legal fight

Marks & Spencer has started legal action against Aldi in an effort to protect its Colin the Caterpillar cake – with a claim its rival’s Cuthbert the Caterpillar product infringes its trademark.

M&S, which lodged an intellectual property claim with the High Court this week, is arguing that the similarity of Aldi’s product leads consumers to believe they are of the same standard and “ride on the coat-tails” of M & S ’s reputation with the product.

M&S wants Aldi to remove the product from sale and agree not to sell anything similar in the future.

M&S launched Colin the Caterpillar around 30 years ago and his appearance has been substantially unchanged since around 2004, except for adaptations for events such as Halloween and Christmas, and related products such as Connie the Caterpillar.

The product is central to M&S’S partnership with cancer charity Macmillan and the retailer has created a Colin product for the annual World’s Biggest Coffee Morning fundraising event.

The cake is a sponge with milk chocolate and buttercream, topped with chocolate sweets and a smiling white chocolate face.

M&S has three trademarks relating to Colin, which the retailer believes means Colin has acquired and retains an enhanced distinctive charac ter and reputation.

A spokesman said: “Because we know the M&S brand is special to our customers and they expect only the very best from us, love and care goes into every M&S product on our shelves.

“So we want to protect Colin, Connie and our reputation for freshness, quality, innovation and value.”

M&S was the first retailer to sell a caterpillar cake , but many supermarkets have since created their own similar products.

Other c a ke s include Waitrose ’s Cecil , Sainsbury’s Wiggles, Tesco’s Curly and Asda’s Clyde the Caterpillar.

There have been a number of other trademark court battles involving food firm brands.

In 2018, Nestle lost its battle to trademark the four-finger shape of a Kit Kat, which it had been trying to do for more than a decade.

Toblerone’s shape was registered in 1998, but in 2017 it faced a dispute with Po u n d l a n d – which designed a version with two rows of triangular bumps – that was settled out of court.

Swiss chocolate maker Lindt & Spruengli defeated a legal challenge in 2015 from rival Haribo, which sought to stop it making its gold chocolate bears.