Colin and Cuthbert – a tale of two caterpillars


Everyone at Bendles takes a very keen interest in cake, after all we are well known for our charity baking days and competition for “star baker” can be fierce but that is nothing compared to the row around Colin and Cuthbert.

Marks and Spencer have brought legal proceedings against rival supermarket, Aldi because they consider Aldi’s Cuthbert the caterpillar cake is too similar to their own Colin the caterpillar cake.

Colin first appeared in 1990 and recently Marks and Spencer have instructed their lawyers to protect their intellectual property rights in relation to Colin.

Intellectual property is something which is owned and that has been created by someone’s mind, this can include things such as an invention, a symbol, a design or even a story.

An individual or a business can own intellectual property but to stop someone copying those ideas, inventions etc the intellectual property must be legally protected by use of copyright, patent or trademarks for example.

Colin has various trademarks relating to such things as his name, his appearance and the packaging he is in, all of which are designed to stop competitors from creating direct like-for-like copies of Colin.

Various retailers have their own version of Colin but Aldi’s Cuthbert is thought, by Marks and Spencer, to be so close to Colin that Aldi have broken the law. Marks and Spencer claim that by copying the likeness of Colin so closely, this could lead to shoppers of both Aldi and M&S believing that Colin and Cuthbert are made to the same standards as one another. Not only that, M&S claim that Cuthbert is unfairly benefiting from the reputation Colin has acquired over the last 31 years.

The matter will now go before a Judge who will have to decide whether they are so alike and well known that the public could be confused as to which one is which or, alternatively, that Cuthbert is trying to take advantage of Colin’s good reputation.  The chances of Marks and Spencer succeeding will be down to Colin’s distinctiveness and whether there is strong evidence to support this.

This is not the first time Aldi has been under the spotlight for selling products which bear an uncanny resemblance to their branded counterparts, with both BrewDog and The Collective bringing similar disputes to the attention of their lawyers.

Although a caterpillar dispute is an entertaining prospect, it is nevertheless a vitally important part of any business to make sure that their ideas do not get copied by their rivals. Even a firm of solicitors has recently got into trouble for doing this. If you would like any advice regarding the ownership of your ideas, please contact our Corporate or Dispute Resolution Departments.

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Written by Liam Mulholland, Trainee Solicitor

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