Battle of the caterpillars: M&S sues Aldi over Colin lookalike


Party Rings, McVities Iced Gems, Jammie Dodgers…just a few birthday party snacks all leading  to the arrival of the centrepiece: Colin the Caterpillar. The famous chocolate cake in caterpillar form has become a staple at millions of children’s birthday parties (or adult birthday parties if you’re still a child at heart). Since M&S launched its famous caterpillar cake in 1990 over 15 million Colins have been sold. 

But move over Colin, there’s a new caterpillar on the block…Cuthbert. Or is there? 

Not if M&S have anything to do about it.

M&S has brought an intellectual property claim against Aldi for producing a very similar, cheaper cake called Cuthbert the Caterpillar. The claim has been lodged with the High Court and M&S wants Aldi to stop production of Cuthbert and to agree not produce anything similar in the future. M&S has three trademarks relating to Colin, including packaging and his name, which they claim has given the chocolate caterpillar a distinct identity and reputation. This blog will outline why it is important to know your IP rights to protect your innovative and original ideas.


What is intellectual property and why is it important?

Intellectual property is an intangible asset that someone has created such as a story, song or invention. Intellectual property is important because these assets are unique to your business and differentiate your business from others, making it even more important that you know your IP rights.  


Why are IP rights important? 

You should know your IP rights so you can successfully:

  • protect your ideas and assets to stop others using your IP
  • transfer ownership of IP rights to other businesses
  • licence the right to use your IP
  • not infringe the IP rights of others

IP licencing allows a business or individual to use someone else’s IP in return for a fee. Make a Trade mark licence agreement to ensure you are not infringing someone else’s IP rights or they aren’t infringing yours.

If you want to transfer ownership of your IP you should make an Assignment of intellectual property.


What are trademarks?

Trademarks are key to M&S’s claim against Aldi and are one of the main types of IP. They are signs that distinguish your business’s goods or services from others e.g. a logo, packaging or shape. M&S are arguing that Aldi is “riding on the coat-tails” of their reputation and that consumers buying the copycat caterpillar are passing it off as a Colin. 


With consumer goods companies constantly in competition, some focusing on low prices and others focusing on remaining known for their unique products, it will be interesting to see what the courts decide should be the fate of Cuthbert. Many companies have both won and lost battles to trademark IP. Toberlone successfully protected its famous triangular shaped chocolate bars despite Poundland’s efforts to stop this. However, Nestle lost its battle to trademark the shape of four fingered KitKat bars. 

If you want more information about trademarking a good or service or have questions regarding your IP rights, you can Ask a lawyer

Sara Domi