At first glance, an adorable caterpillar cake by Aldi should make people smile. Unfortunately,
Marks & Spencer are not having a warm reaction to the sweet treat. As reported by the BBC,
in a recent trademark claim filed in the U.K., Marks & Spencer asserts that Aldi's Cuthbert
the Caterpillar cake infringes its Colin the Caterpillar trademark. This infringement complaint
looks to prohibit Aldi from continuing to sell a cake that, quote, "rides on the coattails"
of the brand's well-known caterpillar character. A Marks & Spencer spokesperson said,
"We want to protect Colin, Connie and our reputation for freshness, quality, innovation
and value."
According to Eater, other brands have sold caterpillar themed cakes, but Aldi is the
only brand that has been sued. In addition, the Daily Mail reports that the Cuthbert the
Caterpillar dessert was spotted in 2019. It provided a quote from a previous Marks & Spencer
tweet saying,
"'Hmm, my spidey senses are tingling... we definitely spot an impostor.'"
It is unclear why the lawsuit is being filed now, nor is it clear why only Aldi is being
sued for its caterpillar cake.
Trademark infringement can be a concern for a food company. As discussed in a Food Dive
article, when a company feels that another brand might cause "irreparable damage," the
lawyers are ready to take to the courthouse steps. From petty disputes to larger concerns,
several well-known brands have sought reparations for trademark infringement.
While the legal application might need an attorney's explanation, there is an element
of common sense that is applied. As shared by Lawyer Monthly, three well-known cases
included disputes over Kit Kat bars and its shape, a particular taste of a cheese spread,
and even the name of a sports related pie. Each lawsuit sought to eliminate consumer
confusion about particular products. Although some people might think that imitation is
a form of flattery, that concept does not apply in trademark law.
Although people can debate the phrase, "what's in a name," for companies its branding matters.
For example, a person might not drive to McDonald's and try to order a Burger King Whopper because
these fast food restaurants are different and the name conveys that idea. But, what
if the names were more similar? If anyone remembers the classic film Coming to America,
the debate of the McDonald's versus McDowell's might come to mind.
"They're McDonald's. I'm McDowell's. They got the golden arches. I got the golden arcs."
Although this example is from a movie, it can happen in real life. A confused customer
is not good for any business.
Fortune discussed trademark litigation and the potential for customer confusion. While
certain words like "grocery store" may be a general phrase, other terms can be associated
with specific brands. Telly Wong of IW Group marketing agency explained to the outlet that
companies need a recognizable name that can be associated with their brand only. How many
times have you glanced at a name or a logo, misread it or thought that you saw something
else? It is this customer confusion that companies want to avoid.
When Marks & Spencer launched this new food fight against Aldi, the company wanted to
avoid the caterpillar confusion. As stated by The Guardian,
"With their hard chocolate shells decorated with sweeties and white chocolate grinning
faces, it is difficult to tell Colin and Cuthbert apart – until you have had a bite, anyway."
From the name to the packaging, the similarities between the two products might not pass the
look test. Granted Aldi has a lower price, but does that value come at a bigger cost
because the taste is inferior?
Some consumers are feeling that this battle between brands might be more suited for the
playground. Although Aldi had previously declined to comment publicly, the brand took to its
Twitter account to say,
"This is not just any court case, this is... #FreeCuthbert"
Whether or not consumers can spot the difference, care to spot the difference, or just don't
care at all remains to be seen. It appears that with this caterpillar cake dispute, no
one is going to be transforming into a beautiful butterfly.
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