Both covered in a solid chocolate shell with a cheeky white chocolate face, the rival caterpillar cakes are visually hard to tell apart. And M&S is not happy about this.
“We know the M&S brand is special to our customers and they expect only the very best from us,” explained a spokesperson for the company. “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.“
M&S claim that Aldi are riding “on the coat-tails” of their reputation. The original ‘Colin’ cake first appeared on M&S shelves in 1990 and since 2004 his appearance has remained fairly consistent. More than fifteen million ‘Colin’ cakes have been sold from the high-end retailer, with successful spin offs including his girlfriend ‘Connie’.
Responding to the copycat claims, Aldi tweeted “this is not just any court case, this is…#FreeCuthbert”. But Aldi are not the only supermarket chain to have taken inspiration from ‘Colin’, with Waitrose selling a ‘Cecil’ caterpillar cake, Sainsbury’s a ‘Wiggles’, Tesco a ‘Curly’, and Asda a ‘Clyde’.
Tom Broadhurst, intellectual property Consultant at Boodle Hatfield, said “the court’s decision will be based on whether M&S can show goodwill in their product, Colin the caterpillar cakes, and if Aldi has benefited from this goodwill with a confusingly similar product, Cuthbert”. He remarked “if shoppers think of Colin from M&S while deciding to buy Cuthbert at Aldi then M&S will win this caterpillar cake war”.
This is not the first time Aldi have been called out for producing similar products to other companies. In 2018, the supermarket was labelled a “parasite” by the family-owned sausage-maker Heck for copying the packaging of their Chicken Italia range. The following year, the chain recalled its Moo gourmet yoghurt after Amelia Harvey, cofounder of The Collective, alleged that Aldi had imitated her branding.
The decision now lands with the High Court which caterpillar cake will emerge from the case like a beautiful butterfly.