The Caterpillar Wars

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The Caterpillar Wars
A look at the way in which companies can use social media and legal controversy for their own gain

Overview
In mid-April, Marks and Spencer announced that it was going to bring infringement proceedings against Aldi’s Cuthbert the caterpillar cake and Aldi’s response did not disappoint many on social media. Aldi’s social media team took to twitter in full force, tweeting puns, jokes and memes about the two caterpillar cakes, using the hashtag #FreeCuthbert .

Aldi’s marketing team seem to be taking an incredibly smart approach to the whole situation. Not only have they painted Cuthbert (and by association, Aldi) as the underdog but they have also managed to whip up excitement for their new clothing launch, which took place online on the 25th of April 2021, incorporating Cuthbert’s face into the advertising for the new clothes.

Cuthbert the Caterpillar image

Image courtesy of Aldi UK

As of the time of writing, Aldi’s new collection has sold out online, so it appears their strategy has paid off. Aldi have also publicly reached out to other brands such as Monopoly, Dulux and Asos, as well as suggesting the caterpillar cakes from Tesco, Sainsbury’s, Asda, Morrison, Waitrose and Coop should group together to raise money for charity. The supermarket chain appears not to have let the possibility of infringement proceedings prevent them from launching their new clothing line with the slogan “Aldi’s just done it”, sharing some obvious similarities with Nike’s slogan “Just do it”. By all measures, Aldi appear to be winning in the court of public opinion so far.

Aldi clothing launch

Image courtesy of Aldi UK

Aldi clothing launch

Image courtesy of Aldi UK

The Twitter response

#FreeCuthbert appears to have a primarily positive response, encouraging people and other companies to join in on the fun and create their own jokes and memes about the situation. In contrast, Marks and Spencer have been relatively quiet on their Twitter account, tweeting only twice about the situation. The reaction to Marks and Spencer appears to be much more mixed, with some people appearing understanding and sympathetic, and others pointing out that some people may not be able to afford the M&S Colin the Caterpillar cake and that M&S themselves appear to have been heavily influenced by, if not outright copied, other brands’ products such as Nestle’s Walnut Whip (Walnut Classic Whips), Fox’s biscuits (M&S Extremely Chocolatey Rounds) and Mr Kipling’s French Fancies (M&S Fondant Fancies).

As with all social media, misinformation is also mixed in among the reactions, with one person telling M&S “Maybe you should have handled it better, like not taking a smaller supermarket to court with bully boy tactics” and another saying “I think what a lot of Aldi/Cuthbert supporters are failing to realise is that Colin is trademarked and when you compare Colin and Cuthbert along with all the other supermarket variations, it’s obvious the reason why M&S are doing this. #ColinvsCuthber ” .

For clarification, Aldi is by far the bigger supermarket, with over 6,520 stores across 11 countries, compared to M&S’s 1,519 stores globally. Additionally, Colin as a whole is not trade marked, the full name “Colin the Caterpillar” and the packaging as seen below are registered trade marks. Colin the Caterpillar could have acquired unregistered trade mark or design rights, but they are much more difficult to prove as compared to registered rights.

Colin the Caterpillar Registered Trade Mark

Image courtesy of the UK Intellectual Property Office

Why are Aldi taking a bold response on social media?
In short - probably because they think they will win, or at least they have little to lose; they could simply withdraw Cuthbert from shelves, redesign the caterpillar cake so that it doesn’t infringe on M&S’s design or trade mark and continue sales. Their response on social media seems calculated to entertain the public and keep them in the spotlight during their new clothing brand launch.

So who is in the right?
Ultimately, from a legal perspective, that is for the judge to decide. However, it’s clear that Aldi have so far won in the court of public opinion. Ultimately, this should be a lesson to companies to consider not just the legal implications of their actions, but also the social implications and the effect marketing can have on the narrative surrounding trade marks, copying, and passing off.



This article is for general interest only and should not be relied on as legal advice. For considered legal advice please contact one of our trade mark representatives:

Abdulmalik Lawal - Abdulmalik.Lawal@franksco.com
Kate Hilton-Balfe - Kate.Hilton-Balfe@franksco.com
Robert Franks - Robert.Franks@franksco.com
manchester@franksco.com