Marks and Spencer (M&S) has recently launched legal action against Aldi, claiming that the latter is infringing the trademark of its Colin the Caterpillar cake. Tod Davies and Sarah Morgan comment on the dispute.
Colin the Caterpillar is a household name and this case, which focuses on copycat products, is likely to garner a lot of attention. Other retailers, who are using similar names for caterpillar-shaped chocolate cake, will be watching this case closely.
Protecting the consumer goes to the heart of trade mark law, so the court will look for evidence that any confusion exists amongst consumers. This could come in the form of attempts to return Cuthbert to Marks & Spencer or customer complaints about Cuthbert being directed to M&S; the differences between Colin and Cuthbert may be vital.
Aldi is no stranger to allegations of infringing intellectual property, but the outcome of this case is far from clear cut. In 2014, Aldi previously fought off allegations that it was infringing the intellectual property of Moroccan Oil through the sale of its own brand Miracle oil. In this case, the court held that customers shopping in Aldi wouldn’t mistake Aldi’s product for the luxury product made by Moroccan oil.
However, in the same year, Icelandic Seachill took on Aldi, accusing the supermarket of infringing its trade marks. Icelandic was granted a preliminary injunction and Aldi removed the offending products from its shelves, before the companies settled out of court.
The number of trade marks is on the rise, with applications increasing year on year, and so naturally so too is trade mark infringement. Businesses therefore need to be increasingly proactive in order to protect their IP, as savvy competitors jostle in a tight marketplace.
If your business is facing any of these issues, or if you have any question or concern about how to protect your trade mark portfolio, don’t hesitate to get in touch at email@example.com.