Britain is well known for its baking shows, which often feature battles between expert bakers aiming to make the best dessert.
However, now the country is setting the stage for a very different kind of battle over baking, a legal one. This is because two of the nation’s retailers are preparing to square off over a pair of notably similar caterpillar cakes.
The case is being filed by Marks & Spencer, which makes Colin the Caterpillar, which first launched about thirty years ago and has remained a staple of the store ever since, receiving only minor changes since at least 2004. The cake is also a product of their partnership with the cancer charity Macmillan, for which the cake helps with fundraising.
On the other side of the dispute is Aldi, which recently launched Cuthbert the Caterpillar, a similar-looking caterpillar-shaped cake that Marks & Spencer claims “rides on the coat-tails” of their more established product.
That said, Colin and Cuthbert are not the only caterpillar-shaped confectionaries in Britain. Other chains in the country offer their own including Waitrose’s Cecil, Sainsbury’s Wiggles, Tesco’s Curly, and Asda’s Clyde. However, of all the similar desserts, Cuthbert is the only one Marks & Spencer felt justified in filing a lawsuit over.
And file they have, taking the matter before a high court in the UK, the chain seeks an order to stop Aldi from offering their product. Specifically, the brand is citing three trademarks that they own in Colin the Caterpillar that they feel are being infringed.
News of the case has been trending on Twitter with Aldi itself taking joining in on the #FreeCuthbert hashtag that has been trending. One Twitter user, @primaryCoHead, even posted a comparison of the various caterpillar cakes to show that Cuthbert is not uniquely similar.
On Twitter, users are generally divided between calling out Aldi for “ripping off” Marks & Spencer while others note that caterpillar cakes are simply a type of take in the UK and question whether Marks & Spencer can own that.
This has also led to at least one caterpillar cake protest outside of a Marks & Spencer store where someone placed several of the caterpillar cakes at the store’s door in a show of support for Cuthbert.
All in all, the stage is set for a very interesting (and tasty) showdown between two of Britain’s largest retailers.
A Brief Analysis
To be clear, this is a trademark lawsuit and not a copyright one. As such, the boundaries for what is and is not infringing is different from a copyright case. That said, it is worth a moment to take a look at the two cakes and see what the similarities are.
To that end, the similarities are very clear. Both cakes are shaped the same, both feature brown bodies, yellow faces and brown eyes. Though it’s difficult to tell with the images available of Cuthbert, both appear to feature circular candies going down the back and short, stubby antennae.
The similarities are obvious and, with both cakes having a name that starts with “C” and are being sold at major retailers in the country, it’s easy to see why Marks & Spencer might be concerned about confusion in the marketplace.
However, this raises a different question: How is the Aldi version more similar than all the other caterpillar cakes?
Some, such as Tesco, Morrisons, Co-op, Asda and Waitrose add more realistic eyes to their cakes while all of them do different things down the back. For example, Waitrose, Co-op and Tesco add spirals to the cake while Asda and Morrisons add sprinkles. Aldi’s Cuthbert does not appear to add anything. These are small differences, but they may make a substantial difference in a trademark case.
The only real differences in appearance between the Marks & Spencer and the Aldi one is that the Aldi one features a tongue and the candies on the back have different colors.
While it’s unclear if Marks & Spencer will win in the courts, it’s easy to see why they felt that the Aldi version of the cake was one step too close even as others they’ve let slide.
Small Differences, Big Impacts
This might seem silly to someone outside of intellectual property. Debating whether a spiral or sprinkles makes a cake distinct enough. These seem like trivial and unimportant changes that shouldn’t have much of a bearing on whether something is infringing a trademark (or a copyright).
However, those small things can make a big differences. To see that in another property, look at Universal’s ongoing protection of their interpretation of Frankenstein’s monster.
Though this is a copyright issue and not a trademark one, which is what the caterpillar case is about, Universal has made it a policy to take action against any version of Frankenstein’s monster that has all the five following elements:
- Green Skin
- Flat Top Head
- Scar on Forehead
- Bolts on the Neck
- Protruding Forehead
This is even though the book Frankenstein has long lapsed into the public domain, meaning anyone is free to make their interpretation of the story and its monster.
It’s easy to imagine that Marks & Spencer has their own, similar list for when a caterpillar cake is too close to their own and that is when they take legal action. Even though the Frankenstein story deals with copyright and this one trademark, it’s all about finding that threshold where a rightsholder feels a competing work is too similar to their own.
This case will be an interesting one to watch. Trademark law is not my area of focus and even less so with UK trademark law. As such, I’m not qualified to even make a prediction in this case.
That said, what will be interesting for me to learn is why Marks & Spencer felt this one was infringing though others are not. Is it like Universal and Frankenstein’s monster where there is a set of requirements for being too close or is there another reason? Is, perhaps, this the first step on Marks & Spencer trying to control caterpillar cakes more broadly?
We don’t know yet, but the first shots have been fired in what may wind up being an interesting legal battle. Barring a quick settlement, this could alter the future of caterpillar cakes throughout Britain.