Pepsi or Coke. Salt and vinegar or cheese and onion. Galaxy or Dairy Milk. There are certain food and drink decisions that split us all into two groups, more or less. And an ongoing battle between Aldi and Marks & Spencer threatens to add another gastronomic dichotomy into the mix: Colin or Cuthbert?
Aldi went on a hearts-and-minds offensive via Twitter, creating memes that will no doubt be studied one day on marketing and social media courses. #FreeCuthbert was trending for days. After a while, I found it became slightly trite, though. Ultimately, the fantastic work done by their social media team was intended to get customers invested in the caterpillars and distract from what’s really on the line: profit. Aldi doesn’t want to retire a successful product, or spend significant sums on legal fees.
Live from inside the courtroom. #FreeCuthbert pic.twitter.com/3gCk7Ex553
— Aldi Stores UK (@AldiUK) April 16, 2021
Perhaps I’m being cynical as soon Aldi made the bold decision to pitch a collaboration with M&S: instead of expensive legal costs, why not donate the money to cancer charities? M&S didn’t take up the offer though, at least not at the time of writing—Colin has been single-handedly raising significant sums of money for cancer charity Macmillan for many years.
Colin is, the British multinational retailer claims, an important piece of Marks & Spencer’s intellectual property. The OG caterpillar cake, now a staple of primary school and office birthdays alike, M&S launched Colin around 30 years ago, and his recipe has been largely unchanged since 2004. He has a girlfriend, Connie, and is given annual makeovers for Halloween and Christmas. Like his shelf-mate, Percy Pig, he is constantly being reinvented.
Morning @Tesco @sainsburys @asda @Morrisons @waitrose @coopuk. Cuthbert needs the help of Curly, Clyde, Cecil, Charlie, Morris and Wiggles. Caterpillars clubbing together to raise money for charity, not lawyers. #caterpillarsforcancer. Up for it?
— Aldi Stores UK (@AldiUK) April 20, 2021
And yet, Aldi’s Cuthbert is far from the only caterpillar copycat. Waitrose has Cecil, Sainsbury’s—in rejection of the customary alliteration—has Wiggles; Tesco and Asda have Curly and Clyde, respectively. Aldi being a German company, where the other supermarkets with competing caterpillar cakes are British, might explain why M&S has singled them out as a target—although there is no apparent link to Brexit.
“Aldi is known to sail close to the wind on creating products which look and/or sound incredibly similar to other brands,” explained Gary Assim, an intellectual property specialist. “M&S may find their case against Aldi difficult, since there are other caterpillar cakes on the market. They should have taken a zero-tolerance approach from the start if they felt that Colin and Connie were so important to them.”
Aldi has, in fact, been a beneficiary of other such quashed claims. Nestlé once tried to claim ownership of the four-fingered design of KitKats, but had its claim dismissed by the European Court of Justice. The dispute went on for years but never had lasting success. A similar Norwegian bar, Kvikk Lunsj, has been around almost as long, and caused issues for Nestlé. Aldi and Lidl both make ‘own-brand’ versions of the four-fingered biscuit.
Speaking of biscuits, one of the biggest culinary court cases in British history asked the question: when is a biscuit not a biscuit? The answer: when it’s a Jaffa Cake. Whether or not a Jaffa Cake is in fact a cake might seem like a trivial issue, not one for the courts, but in the UK biscuits are subject to full VAT, whereas cakes are not. In 1991, Her Majesty’s Customs and Excise classed the chocolate-covered orange snack as a biscuit, so McVitie’s, who have been making them since the 1920s, took them to court. The market was worth over £1 billion, so they, understandably, took the matter very seriously indeed.
Cakes, it was argued, harden when they go stale, whereas biscuits go soft. (Think of an expired pack of digestives versus a week-old birthday cake.) As such, Jaffa Cakes were deemed a chocolate-covered cake. There are some potential philosophical implications of such a decision—although these are primarily linguistic and semantic concerns. It shows, simultaneously, the elasticity of language and its legal importance.
Food and drink is a notoriously complicated sector for intellectual property. Beyond logos, packaging and slogans, it’s difficult to trademark a design. Toblerone is a rare example, as are Pringles, who own the patent for “dough sheets […] cut into elliptical pieces having the approximate size and shape of sliced potatoes and then fried in conventional chip frying apparatus.”
Will Colin best Cuthbert in the courts? A so-called ‘caterpillar cake’ doesn’t seem to have the same level of specificity as a Toblerone or Pringle in design—yet maybe Cuthbert will be deemed a flagrant Colin copy. Does it matter? Either way, this could potentially open the floodgates for malicious copying, or the total opposite: frighten off even the most innocent of caterpillar imitations. Perhaps, as a slight suggestion, one of the two will metamorphose into a butterfly… Who knows?
