In a move which will please cake fans across the land, the battle of the chocolate caterpillars aka Colin vs Cuthbert has settled out of court on undisclosed terms.
M&S launched its Colin the Caterpillar cake more than 30 years ago. His appearance has only changed slightly over the years, and recently more family members have joined him with related products including Connie the Caterpillar and individually wrapped caterpillar cake bars.
Several other supermarkets have joined the party with their own offerings. Most notably as far as M&S is concerned Aldi’s product line up features their own chocolate caterpillar, Cuthbert, which first hit the shelves in 2019. It was Aldi’s Cuthbert which prompted M&S to commence a High Court action alleging copying and infringement of its Intellectual Property rights.
Terms of the settlement have not been disclosed other than with both parties confirming that an agreement has been struck. M&S has commented briefly to claim that it is “pleased” with the outcome. In contrast, Aldi’s response has played out on Twitter hinting at Cuthbert’s return as early as spring.
The Court of Public Opinion
It is probably fair to say that few Intellectual Property disputes have attracted as much attention in recent years as this one. Interestingly, outside of the High Court, Aldi has frequently taken to social media throughout the dispute where it enjoys support from many of Cuthbert’s fans. With few details surrounding the settlement terms it would seem that the keyboard warrior jury may now retire in the comfort of knowing that their chocolaty treats are legal once again.
Just before the supermarkets can fully resume life on the high street their legal minds will need to consider the next battle. At stake in round two is gin liquor. More particularly, the “light-up” gin liquor which M&S claim was copied by Aldi with its own very similar Christmas product.
Whether this will reach court remains to be seen, but it is yet a further demonstration how fiercely owners wish to protect their intellectual property in an environment where the legal arguments are extremely complicated and finely balanced.
In fact, M&S found themselves in hot water very recently when it began selling Belgian chocolate matchsticks labelled “perfect match” for Valentine’s Day. This caught the attention of Bath based family company Choc on Choc who immediately took to social media accusing M&S copying its “strikingly similar” design, which it first introduced in 2015.
In the face of Twitter hostility, M&S agreed to stock the product and work with the British chocolatier on seasonal products later in the year. No judicial intervention was required here to reach an outcome which could have required judges to consider the merits of chocolate once again.
If you require guidance on matters of intellectual property, please contact the Pinney Talfourd Commercial Team.
This article was written by Edward Garston, Partner in our Company & Commerical Team. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of February 2022.