The curious case of Colin vs Cuthbert – public opinion and the power of social media
Stories about Intellectual Property rights and infringements are hitting the headlines more frequently than ever, as brands exercise their right to protect their product and service trademarks and designs. One story in particular has seized the public’s interest and raised the topic of how different strategies outside the courtroom – including social media – can be used to good effect to both highlight and defend against infringement claims.
In April 2021, British retail favourite Marks and Spencer filed a lawsuit alleging that German discount grocer Aldi had infringed its trademark for the ‘Colin the Caterpillar’ Cake, a confection that has graced many a birthday party and office celebration over the 31 years since it was first launched. M&S claimed that ALDI’s ‘Cuthbert the Caterpillar’ cake was confusingly similar and could cause consumers to mistake the source of a caterpillar-shaped cake they might be offered.
As the story piqued the interest of mainstream news outlets, many commentators began to point out that ALDI is not the only grocery store with a caterpillar cake on its stock list. Retail Gazette magazine – among many, many others – pointed out that Curly (Tesco), Wiggles (Sainsbury’s), Clyde (Asda), Morris (Morrisons), Cecil (Waitrose) and Curious (Co-op) are all caterpillar-shaped celebration cakes available to consumers. To the average consumer, it seemed as though Aldi was being unfairly singled out for litigation.
At this point, ALDI put its case to the court of public opinion and activated its powerful social media estate to launch a campaign centred around #FreeCuthbert and including the hashtag #marksandsnitches. With a series of posts, ALDI positioned Cuthbert as the plucky underdog (undercaterpillar?), before posting a conciliatory tweet suggesting the two resolve their differences with a joint venture supporting the two stores’ charity partners, Macmillan and the Teenage Cancer Trust. At the time of writing, M&S has not taken up the offer, instead suggesting that ALDI use its own Kevin character for fundraising. The case continues, and ALDI is set to relaunch Cuthbert in stores on 17th May.
The interesting point here is the overall impact on brand caused by M&S’s decision to litigate and ALDI’s social media response. ALDI has long sailed close to the wind when it comes to mimicking the products and packaging of well-known brands. M&S is certainly within its rights to challenge a product that bears striking – it argues confusing – similarities to its own registered trade marks. However, the existence of multiple copycat cakes seems to have swayed public opinion in Cuthbert’s favour and allowed ALDI to position itself in the role of disarmingly cheeky chancer, despite the company dwarfing M&S in market share terms. In terms of brand awareness, affinity and impact, ALDI… so far… seems to have come out ahead.
Brewing up a social media storm
Such is the potential of social media that accusations of infringement need not be registered legally to have an impact on brand protection. Beverage company BrewDog were aggrieved to spot an ALDI product that shared similar sentiment and packaging to its Punk IPA. ALDI’s Anti-Establishment IPA certainly had a lot in common with the craft brewer’s drink and BrewDog was not slow to call this out through its social media channels.
A swift back and forth ensued resulting not in litigation, but instead a tie-up between the two companies that saw ALDI stock BrewDog’s rapidly produced ALD IPA. Both parties came out of this well in brand sentiment terms, although it should be noted that ALDI still stocks the Anti-Establishment IPA, so perhaps BrewDog compromised on actually seeing the product discontinued.
Who’s the BOSS?
Fashion brand BOSS has a robust approach to monitoring its trade marks for infringement. Last year the company sent a cease-and-desist letter to artisan South Wales brewery Boss Brewing. The situation came to the attention of comedian Joe Lycett, who at the time was presenting a consumer rights show. He changed his name by deed poll to Hugo Boss and generated a lot of publicity around the issue, pointing out the difference in resources between the two organisations.
At the time, Kate Swaine, intellectual property partner at Gowling WLG, told the BBC: “Joe Lycett’s actions shine a light on the potential negative PR implications when undertaking a brand enforcement program. Even where a brand is legitimately enforced, brand owners must be alive to where issues may arise in relation to smaller businesses or individual use.”
While it is vital that businesses protect their brands from copying and dilution, through the courts if necessary, brand protection has broader scope and organisations should consider as far as possible the potential media and social media effects in order to be prepared to extend that protection into the court of public opinion.
Caterpillar conflict continues
In the case of the conflict of the caterpillars, both brands are large, well-resourced businesses. Here the battle will be joined in court as well as online, and the eventual outcome will be interesting. This could be an opening move by M&S, taking on Colin’s closest copycat as a warning to other food retailers that it is serious about protecting its registered rights.
In the meantime, Cuthbert the Caterpillar returns to ALDI’s shelves (by way of a skydive) in a charity drive to raise funds for the Teenage Cancer Trust and, in social media terms, the ball is in the M&S court.