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.
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.
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?
Last week Marks and Spencers started selling hijabs as part of the school uniform collection for 3-year-olds. Now, for anyone who isn’t aware of what Islam says about modesty, the hijab—both external and internal (as in physically covering and generally leading a modest lifestyle), is required of post-puberty women. Some have argued that M&S is feeding into an oppressive machine, others have said that this is the protocol for business: to supply to the demand, while there’s the other argument that the hijab is cultural just as it is religious, so maybe young girls going to school simply wanted to look like their mothers.
The reaction to Marks and Spencers selling hijabs to young girls differed than say Nike producing the sportswear hijab. When Nike came out with an athletic scarf cap in March 2018, it was praised because it felt like the most iconic sports brand was recognising Muslim women in sport and encouraging Muslim girls to get involved in athletics. It also meant Muslim women who choose to wear the headscarf saw themselves represented in lights other than the stereotypical caricatures of being oppressed and needing to be saved, as a woman playing sports shows agency over her body, an idea rarely extended to Muslimas. However the mixed reaction by Muslim women to Nike’s move was largely of scepticism. Why now? Was Nike truly being diverse or was this a blanket way to demonstrate liberalism and perhaps, the cool thing to do?
Recently, in September 2018, Nike released its controversial ad campaign with Colin Kaepernick, a black NFL quarterback player who had been outcasted from the league because of his kneeling protest during the national anthem. Many had been waiting to see where the sports brand would align itself politically and joining Kaepernick was another way of saying Nike was standing up for black issues and movements such as #takeaknee and #blacklivesmatter. Though many right-wing citizens boycotted Nike and for a few days the company’s stocks dropped, the campaign was a success. The company’s revenue in the period increased by 10 percent and profits rose across the world—climbing even as high as 24 percent in China (partially because the firm has started focusing more on direct sales). Yet since the release of the campaign, it’s been reported that Nike employees donate 3 times more to the Republican party than to the Democrats. Nike’s own company’s political action committee (PAC) donated $424,000 to the Republican party in 2018 alone. So the real question is, to what extent is this care for social justice a mere charade? And what do the stories behind trying to appear progressive say about conglomerates?
My instant reaction to Marks and Spencers selling hijabs to 3-year-olds was similar to when I read about who Nike really supports. Because the root of why large companies like Nike and your local M&S work the diversity angle on the surface only is due to the lack of diverse makeup in its employees. For example, this year Nike had to undergo a mandatory diversity training and unlearn racial bias as there was the departure of several senior members of staff. It’s no surprise then that a company that is only 23 percent non-white and makes money from blackness and black people donates to right-wing parties that are not supportive of black issues such as police brutality and systemic white privilege. On the other hand, head of customer experience at Marks and Spencers, Maria Koutsoudakis, admitted that the chain has a lot of work to do with diversity and is open to being wrong. But when you’re worth over £2 billion, this is a lazy if not dangerous excuse.
Diversity is easy to check and easier to display when doing so from behind a screen, but the proof is in the performance of the company and not just in what it represents. The monetisation of buying or producing merchandise that seems liberal-learning has a reverse effect when stories like these are released, as we are all well aware of the lengthy administration process any product or campaign has to go through before it is available to buy. (Can anyone say Pepsi?). And in these Trumpian times, we are even more aware that who you endorse behind closed doors, speaks louder than seemingly inclusive campaigns.
What stories like Marks and Spencer and Nike show is an absence of speaking to their consumers, hiring who they largely sell to and listening to the groans minorities feel as they think “not again”. It doesn’t feel like inclusion, nor does it feel like time spent on understanding minority cultures, but just something else to push, so we can buy.