Aldi’s Cuthbert the Caterpillar returns – with a slight change

Last month, we discussed M&S suing Aldi for trademark infringement over its Colin the Caterpillar cake. Now Aldi has brought back its Colin lookalike, Cuthbert the Caterpillar, but with a slightly altered face.

To distinguish itself from Colin, Cuthbert now has white chocolate eyes instead of brown. This could have a bearing on M&S’s High Court trademark infringement claim, which focuses on its similarities to Colin.

Although other UK supermarkets offer similar caterpillar cakes, including Tesco’s ‘Curly’ and Asda’s ‘Clyde’, these products have more significant visual differences than Aldi’s Cuthbert.

The merits of M&S’s case will depend on the extent to which consumers would mistake Cuthbert for Colin, and clearly any changes to the presentation of Cuthbert could be relevant to that assessment.

M&S’s argument could be that this risks so-called ‘post-sale confusion’, where someone presented with Cuthbert mistakes it for Colin even though the buyer knows it is from Aldi. A similar argument proved successful last year for Freddy Jeans, who our IP team represented in a claim against Hugz Clothing.

I expect the evidence will suggest that consumers look at it more holistically – the face overall is still extremely similar to the M&S product, as compared to other caterpillar cakes out there.

So there is still a realistic possibility that consumers will consider Cuthbert to be Colin, and if post-sale passing off is taken into account, this is even more likely.