M&S is suing Aldi for breach of the intellectual property rights in its popular Colin the Caterpillar cake. I spoke this morning on Radio Solent about the interesting news.
This story has captured the eye of the public, many of whom will no doubt have purchased and/or consumed Colin cakes over the years! There have been other copycat-erpillars’ before, but it seems that this one, Cuthbert, is more similar to Colin and is probably the deciding factor as to why M&S are going after Aldi now.
There are various laws on ‘copycats’ – famous cases such as the Jiff lemon case lead the way where products seem to be ‘riding on the coat tails’ of other famous brands – and of course, each case will depend upon which intellectual property rights protect the original products, what the infringement is and whether or not the public is deceived.
I had a quick look this morning to see what rights M&S has in the Colin cake and they have been very diligent in protecting him:
I have yet to read the pleadings in detail and will do so with interest (and perhaps over a cup of tea and a slice of cake) but I anticipate that with all these IP rights protecting Colin, M&S will not have relied upon the common law right of passing off which protects reputation. Passing off is usually run as an action to protect a brand and is, as a result, notoriously difficult to run when trying to protect a product. Registered trade marks are easier to enforce and as explained briefly above, I expect that M&S will rely on this instead rather than having to use the ‘riding on our coat tails’ argument. However, we see in the newspapers that M&S are concerned that Aldi’s close resemblance of Colin will infer a certain quality standard of cake which, if not met, might damage their reputation, so it may be that a passing off argument is in the mix after all.
I will of course update you as things progress.
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