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ARTICLE · 12 MAY 2021

This Is Not Just Any Caterpillar…

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It would have been difficult to miss the recent news that Marks & Spencer has filed trade mark infringement proceedings against German discounter Aldi's Cuthbert the Caterpillar cake.

United KingdomIntellectual Property
Claire Jones
Claire Jones
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It would have been difficult to miss the recent news that Marks & Spencer has filed trade mark infringement proceedings against German discounter Aldi's Cuthbert the Caterpillar cake. The filing became the top trending topic on Twitter within days and has sparked much debate online.

M&S's Colin the Caterpillar is not the only caterpillar themed cake on the market, with a number of other supermarkets having their own versions, including Waitrose's Cecil, Sainsbury's Wiggles, Asda's Clyde and Tesco's Curly.

The Potential Claims

M&S own UK trade mark registrations that cover the name "COLIN THE CATERPILLAR" as well the packaging of the product. It is very likely that the claims will have included passing-off to cover the appearance of the cake itself, originating from the goodwill associated with the product. In order to succeed under this ground, M&S will need to show that Aldi's Cuthbert offering damages, or has the potential to damage that goodwill by

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