Has Aldi bitten off more chocolate than it can eat by selling its 'own label' Cuthbert the Caterpillar cake clearly 'inspired by' the M&S classic Colin the Caterpillar?
Aldi is known to sail close to the wind on creating products which look and/or sound incredibly similar to other brands.
The typical attack is for the brand owner to claim that Aldi is infringing a trade mark like here in the M&S case or that Aldi is passing off its product as that of the brand owner. Both of these are fraught with difficulty as, unless the name of the Aldi product is identical with the brand in question, the brand will need to show that customers have been deceived into believing that the Aldi product is in fact theirs or associated with them.
Aldi, of course, can say that it does not sell any of the brands products and its customers know that these types ofproducts are Aldi 'own label' therefore there cannot be any confusion.
There was a recent successful court case in 2019 against Aldi brought by Charlotte Tilbury, the cosmetic brand, but this was based on copyright and the copying of certain designs on the Aldi product not the name or look of the product.
Brands faced with similar problems with Aldi or other third parties should consider all of their IP rights and consider which one, or combination, are strongest and then decide if it is worthwhile to launch legal action.
M&S may find their case against Aldi difficult since there are other caterpillar cakes on the market. They should have taken a zero tolerance approach from the start if they felt that Colin and Connie were so important to them.
"Because we know the M&S brand is special to our customers and they expect only the very best from us, love and care goes into every M&S product on our shelves. "So we want to protect Colin, Connie and our reputation for freshness, quality, innovation and value."