Has social media freed Cuthbert the Caterpillar?

For such small creatures, two caterpillars have kicked up a particularly large fuss this April. An intellectual property case turned social media frenzy, Marks and Spencers’ legal action against Aldi over its Cuthbert the Caterpillar cake has cut open the multiple layers involved in copyright infringement for all to see. In many ways, the high profile case has highlighted the balancing act between a trial by the judiciary and trial by the media that will determine whether Cuthbert “rides on the coat-tails” of M&S’ famed Colin the Caterpillar character.

The saga was set in motion by M&S launching an intellectual property claim with the High Court on 14 April 2021. The supermarket chain, which has three trademarks relating to Colin, has pressed for Aldi to remove the product from sale and ensure that similar products will not be sold in the future. 

It is clear that M&S has placed itself in a position of superiority, aiming to ensure that consumers and lawmakers alike are aware of the “copycat” nature of Aldi’s cheaper and supposedly inferior Cuthbert cake. “At M&S we are passionate about creating the highest quality, most innovative food for our customers,” said an M&S spokesperson. “Whether that is 100% British sourced meat or iconic products like Colin the Caterpillar, Percy pig and our glitter gin globe. 

“Because we know the M&S brand is special to our customers and they expect only the very best from us, 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 may feel that its “highest quality” cake needs protection from unlawful knockoffs, but what legal protection does Colin actually have? Alexandria Winstanley, intellectual property and media lawyer at commercial law firm Pannone Corporate, highlights that by securing trademark registrations, brand owners can gain “the exclusive right to use the registered marks for the types of goods and services for which they are registered”.

She adds: “In circumstances where M&S can establish a goodwill in the ‘look and feel’ of its products, M&S can also challenge third parties who deal in confusingly similar goods where that conduct misrepresents a commercial connection between them and causes M&S damage.” 

Packaging update. #FreeCuthbert pic.twitter.com/XDSnhpvjmj

— Aldi Stores UK (@AldiUK) April 16, 2021

However, as Jowanna Conboye, intellectual property and technology partner at full service law firm Spencer West, explains: “Brand protection is not all about the law”. The case has rapidly spiralled into a PR battle, with Aldi undoubtedly coming out on top. The discount supermarket chain opened the trial to the general public with a Tweet, stating that “this is not just any court case, this is #FreeCuthbert”.

A string of humorous posts have since followed, including jibes at the “Marks and Snitches” brand and jokes that “Cuthbert has been found guilty… of being delicious”. While Aldi has been quick to capitalise on the PR goldmine, Helen Dobson, senior associate at specialist technology law firm Boyes Turner, notes that “M&S don’t seem to quite have their finger on the cultural pulse”.

She adds: “The challenge has not gone well for them in some circles and they were very late to the Twitter party.” Although M&S launched the campaign against Cuthbert, Aldi’s social media team has turned the case on its head, pushing opinions in favour of Cuthbert to such an extent that Aldi is set to reintroduce the £4.99 caterpillar to its shelves after a two month hiatus.

Winstanley claims that this high profile example emphasises “the value of an accompanying PR campaign to shine a spotlight on acts of alleged infringement”. Aldi has evidently been able to hijack the initiative, even proposing a charity collaboration to force M&S into a difficult position in the public eye. 

In a Tweet, Aldi said: “We’re bringing back a limited edition Cuthbert and want to donate profits to cancer charities… let’s raise money for charity, not lawyers.” However, while supermarkets such as Waitrose and Asda have waded in on the side of Cuthbert, M&S’ position has held firm. “We love a charity idea (Colin’s been a big fundraiser for years),” the group said in a Tweet. “We just want you to use your own character.”

😢#FreeCuthbert #CaterpillarsForCancer https://t.co/mQ6PZgltSz

— Aldi Stores UK (@AldiUK) April 20, 2021

Winstanley adds that “if M&S succeeds in its claims, then the retailer may secure an injunction preventing Aldi from marketing or selling the Cuthbert the Caterpillar in the future”. Yet, Aldi’s brand image may remain unharmed, or even strengthened, following the caterpillar fiasco. Interaction with online retail giants Asos and Pretty Little Thing over the group’s recently dropped Spring/Summer collection are confirmation of this extended publicity. 

Aldi’s superior reaction to cover its supposedly inferior product can perhaps be attributed to the company’s experience in the field. “This is Aldi’s business model,” says Dobson. “This isn’t the first time Aldi has met these challenges, and won’t be the last. They sail close to the wind, it seems they are unlikely to change this.”

The group was able to escape any judiciary action against its Moroccanoil product, as the case’s judge concluded that the retailer “probably intended to make the public think of Moroccanoil when they saw Miracle Oil in its packaging,” says Dobson. 

A separate occasion saw BrewDog opt to make amends, rather than press charges against Aldi’s Anti-establishment IPA. After a brief Twitter exchange, James Watt, owner of the global brewing company, announced the introduction of a limited edition YALDI IPA, with one tree being planted for each crate sold. Conboye claims that smaller brands who “might not have the money to fight a lengthy legal case” against large supermarkets “can be creative in their response to an infringement of their intellectual property rights”.

.@Brewdog And they say Cats and Dogs don't get along! 🐛🤝🐕 #FreeCuthbert https://t.co/tc7uWjXdd5

— Aldi Stores UK (@AldiUK) April 16, 2021

She adds: “The BrewDog case shows the importance of companies having their legal teams, marketing and social media teams work together when difficult brand issues like copying arise. It was a great creative solution.” While this theory may not apply to M&S, who certainly has the resources and reasons to open an intellectual property case, similarities can be drawn between BrewDog and Aldi’s charity proposals, pointing to a lesson learned by the discount supermarket group.

The spat between Colin and Cuthbert may seem slightly unnecessary, but it has shone a light on the extent to which firms can offer “copycat” products and ride “on the coat-tails” of retail favourites by utilising social media marketing strategies. In this particular case, even if M&S wins the legal battle, Cuthbert (and thus Aldi) looks set to emerge with a rejuvenated brand image at the expense of its Colin the Caterpillar competitor.