Cuthbert has legs with a bit of a sour bite at Colin!

The Pure Ideas Update: Colin settles down with Cuthbert! Updated 21.02.2022

All bun fights need to end and the same can be said for cake wars. Marks and Spencer have settled with Aldi over their respective Colin and Cuthbert chocolate cakes. The terms of the settlement are confidential but hopefully some charities have benefited in addition to some lawyers.

All the marketing opportunities have played out. The costliest stages of litigation are about to commence but either way the significance of having shown interest in protection of intellectual property rights is clear.

The nature of intellectual property is to prevent or at least inhibit ‘me too’ type activity. Without commenting on the merits of this particular case the fundamentals are the same; one party makes an innovation which allows a premium or gives it an advantage in the market and others will want to ride on that innovation or market disruption without the cost and more importantly effort in establishing the innovation or reputation – it is natural to want to invest in a proven or clear winner you only need to watch a few episodes of the popular TV show Dragon’s Den to see that!

The Innovation might be marginal – we suspect caterpillar design cakes have been around for generations made by home cooks, but put in marketing effort, clever branding and you have something worthwhile to protect!

 

Trade Marks and especially reputations are precious things, hard to gain and all too easy to tarnish. Marks and Spencer (M&S) have for many years supplied and gained an ongoing reputation for a ‘Colin’ caterpillar cake. ALDI had a caterpillar cake called ‘Cuthbert’. M&S got upset. ALDI saw an opportunity, pondering what other organisation have traded under the epithet M&S they recalled Marley and Scrooge from a Dickensian Christmas Carol. The opportunity to tweak a scrooge like attitude couldn’t be missed.

Aldi Christmas Launch Advert 2021 – YouTube

Cuthbert (the cake) is shown briefly at the beginning of the advert under arrest by lemon Police Officers and is an allusion to the M&S sour view of his similarity to their Colin (the cake). An allusion to the court of public opinion which might have much more effect than to a court of law. It has no clear mention of Cuthbert, but the intention is clear.

A registered Trade Mark and reputation give you certain legal rights. Parody can sometimes be a call to moral crusade. The public, as well as PR departments, understand that. It is an opportunity which can’t be missed – as they say any publicity is good publicity particularly when it is combined with a Christmas advertising campaign! Standing out is what advertising is about and light hearted discussion at the coffee bar meets those criteria.

We await the M&S response, whether they will stay aloof or get into the spirit of Christmases to come back with some witty repost. A caterpillar cake which morphs into a lemon drizzle cake, gin liqueur or a Sicilian lemon gin or maybe ALDI have already thought of that as they get into their Christmas spirits. What is clear, and contrary to popular belief, the Germans do have a sense of humour. Trade Mark disputes can have a fun angle, but you need rights to play this game. For that you need to take proper advice and avoid more legal action.

Want to know more about Trade Marks? Listen to our Episode#2 Podcast: Introducing Trade Marks and hear from one of our Trade Marks specialists Danni Wears.