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Colin v Cuthbert: Copycat-erpillar?

Date
21 April 2021

Jacob Miller

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  • Feb 15, 2020
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    I think the Colin/ Cuthbert dispute is really interesting on a number of levels. It really has caught the public imagination and it's got the nation talking.

    From a legal perspective, I must admit that I understand & agree with M&S' case: if you look at all the various caterpillar cakes on the market, it's hard to ignore the similarities which are more present between Colin and Cuthbert than any other brand. If you're feeling smart, you can take this test to see if you really know your Colins from your Cuthberts!

    From a commercial perspective, though, it's hard to ignore that it's been a PR masterclass from Aldi... and a disasterclass from Markies. From this perspective, I can't help but wonder whether it's really backfired on M&S in creating the dispute? The British public do love an underdog, and have (generally speaking) really got behind Aldi. I for one would be exceptionally keen to see whether the sales figures for either company has substantively changed in the last week or so. Speaking of 'dogs', Brewdog's answer to Aldi's "interpretation" of their iconic Punk IPA in August last year showed a completely different type of response to a very similar situation... one which was certainly much better received than M&S' litigation campaign.

    I think, for applicant, this is a prime example of why it is exceedingly important to remember wider commercial implications of legal actions in the application process. It strikes me that there is a reasonable likelihood that M&S badly miscalculated the commercial implications of raising this dispute, and that - while they may or may not win in a courtroom - it seems as though they have already suffered some reputational damage in how they've handled the fall-out.

    I look forward to hearing your thoughts!
     

    Matt_96

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  • Dec 15, 2018
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    I can't claim to know anything about the intricacies of IP law but what interests me most about this case is Aldi's PR strategy. It seems quite aggressive, given that it is taking light of a potential violation of another company's IP rights, which could lead to some fairly hefty financial consequences. I wonder if a judge might see this sort of response as being inappropriate and indicative of Aldi's respect for the IP rights of other brands in general.
     

    UCLOxon97

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  • Oct 18, 2020
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    It’s not unheard of that companies use PR strategies in their legal problems, I think Spotify (or maybe a popular game?) did something similar against Apple Store transactions.

    What I’d be interested to know though is if Aldi was founded guilty of IP infringement, will their penalties be made greater because of this? (M&S could probably now claim to have suffered even more financial losses than before the case started.)

    *this might all be nonsense I’m a non-law hah
     
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    Jacob Miller

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  • Feb 15, 2020
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    I can't claim to know anything about the intricacies of IP law but what interests me most about this case is Aldi's PR strategy. It seems quite aggressive, given that it is taking light of a potential violation of another company's IP rights, which could lead to some fairly hefty financial consequences. I wonder if a judge might see this sort of response as being inappropriate and indicative of Aldi's respect for the IP rights of other brands in general.
    I was actually having this exact discussion with my fiancee the other night. She's a bit of an copyright/ IP nerd and was saying more or less the same as you: it could be perceived extremely badly by a court and, while this will obviously not affect whether they are considered to have breached trademark or not, it is could have an impact on what damages are awarded as there's a reasonable case to say that the damage has been amplified in light of their conduct. My instinct is that this will calm down as it heads to trial as it would likely cause more harm than good - that said, I could be underestimating Aldi's perception of "any publicity is good publicity"!

    Edit: I was wondering, too, whether Aldi are more or less taking the attitude that "oh well, it'll all go on insurance anyway". I don't think it's outside the realms of possibility, though, that insurers may challenge their liability given Aldi's conduct here - any insurance nerds know more about this than I do?
     
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    Jacob Miller

    Legendary Member
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  • Feb 15, 2020
    793
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    It’s not unheard of that companies use PR strategies in their legal problems, I think Spotify (or maybe a popular game?) did something similar against Apple Store transactions.

    What I’d be interested to know though is if Aldi was founded guilty of IP infringement, will their penalties be made greater because of this? (M&S could probably now claim to have suffered even more financial losses than before the case started.)

    *this might all be nonsense I’m a non-law hah
    See my above comment :)

    It's hard to give a general rule as it varies wildly from case to case and by area of law, but, if a party's conduct aggravated the damages caused by the initial course of action or omission giving rise to the claim, then there is no reason that the claim value could not be increased accordingly.
     
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    Daniel Boden

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  • Sep 6, 2018
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    It’s not unheard of that companies use PR strategies in their legal problems, I think Spotify (or maybe a popular game?) did something similar against Apple Store transactions.

    What I’d be interested to know though is if Aldi was founded guilty of IP infringement, will their penalties be made greater because of this? (M&S could probably now claim to have suffered even more financial losses than before the case started.)

    *this might all be nonsense I’m a non-law hah
    Yes you're thinking of Epic Games (the people behind the very popular game Fortnite) in its antitrust dispute with Apple! A really interesting case on so many levels that is covered in a lot of detail on 'The Commercial Awareness Podcast' which I'd encourage you to give a listen if you haven't already :)
     

    UCLOxon97

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  • Oct 18, 2020
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    Yes you're thinking of Epic Games (the people behind the very popular game Fortnite) in its antitrust dispute with Apple! A really interesting case on so many levels that is covered in a lot of detail on 'The Commercial Awareness Podcast' which I'd encourage you to give a listen if you haven't already :)
    Yes I love that podcast! Sadly it seems to have stopped since Christmas?
     
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    S87

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    Sep 4, 2018
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    I was actually having this exact discussion with my fiancee the other night. She's a bit of an copyright/ IP nerd and was saying more or less the same as you: it could be perceived extremely badly by a court and, while this will obviously not affect whether they are considered to have breached trademark or not, it is could have an impact on what damages are awarded as there's a reasonable case to say that the damage has been amplified in light of their conduct. My instinct is that this will calm down as it heads to trial as it would likely cause more harm than good - that said, I could be underestimating Aldi's perception of "any publicity is good publicity"!

    Edit: I was wondering, too, whether Aldi are more or less taking the attitude that "oh well, it'll all go on insurance anyway". I don't think it's outside the realms of possibility, though, that insurers may challenge their liability given Aldi's conduct here - any insurance nerds know more about this than I do?
    But then can the insurer claim that Aldi PR’strategy has increased the likelihood of the claim?!
    I am going to ask my fiancé she is a claims handler.
    Sorry for being late to the party..I live for this shit!
     
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    Matt_96

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  • Dec 15, 2018
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    See my above comment :)

    It's hard to give a general rule as it varies wildly from case to case and by area of law, but, if a party's conduct aggravated the damages caused by the initial course of action or omission giving rise to the claim, then there is no reason that the claim value could not be increased accordingly.

    I've not studied much IP law but isn't goodwill towards a business also quite an important part of IP rights too? M&S could perhaps argue that Aldi's PR strategy is damaging the goodwill associated with Colin the Caterpillar.
     
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    Dheepa

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  • Jan 20, 2019
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    I've not studied much IP law but isn't goodwill towards a business also quite an important part of IP rights too? M&S could perhaps argue that Aldi's PR strategy is damaging the goodwill associated with Colin the Caterpillar.

    Agreed! I think the first hurdle M&S has to pass is proving that there is enough goodwill associated with Colin which then means that Aldi's version would cause enough confusion in the marketplace to damage that goodwill.
     

    Jaysen

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  • Feb 17, 2018
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    I think the Colin/ Cuthbert dispute is really interesting on a number of levels. It really has caught the public imagination and it's got the nation talking.

    From a legal perspective, I must admit that I understand & agree with M&S' case: if you look at all the various caterpillar cakes on the market, it's hard to ignore the similarities which are more present between Colin and Cuthbert than any other brand. If you're feeling smart, you can take this test to see if you really know your Colins from your Cuthberts!

    From a commercial perspective, though, it's hard to ignore that it's been a PR masterclass from Aldi... and a disasterclass from Markies. From this perspective, I can't help but wonder whether it's really backfired on M&S in creating the dispute? The British public do love an underdog, and have (generally speaking) really got behind Aldi. I for one would be exceptionally keen to see whether the sales figures for either company has substantively changed in the last week or so. Speaking of 'dogs', Brewdog's answer to Aldi's "interpretation" of their iconic Punk IPA in August last year showed a completely different type of response to a very similar situation... one which was certainly much better received than M&S' litigation campaign.

    I think, for applicant, this is a prime example of why it is exceedingly important to remember wider commercial implications of legal actions in the application process. It strikes me that there is a reasonable likelihood that M&S badly miscalculated the commercial implications of raising this dispute, and that - while they may or may not win in a courtroom - it seems as though they have already suffered some reputational damage in how they've handled the fall-out.

    I look forward to hearing your thoughts!
    Would also be keen to know the sales figures - it may be the case that both Aldi and M&S have seen a surge in caterpillar cake sales! I also find it interesting to see the public weighing in on this/the role of social media.

    I often see comments on these posts that M&S shouldn't be targeting Aldi because all the other supermarkets have caterpillars. I struggle with this - just because there are other imitators doesn't mean that M&S can't exercise its own right to pursue one of these claims, and as you said, it may be the case that Cuthbert is more similar to Colin than the others.
     

    S87

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    Sep 4, 2018
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    Would also be keen to know the sales figures - it may be the case that both Aldi and M&S have seen a surge in caterpillar cake sales! I also find it interesting to see the public weighing in on this/the role of social media.

    I often see comments on these posts that M&S shouldn't be targeting Aldi because all the other supermarkets have caterpillars. I struggle with this - just because there are other imitators doesn't mean that M&S can't exercise its own right to pursue one of these claims, and as you said, it may be the case that Cuthbert is more similar to Colin than the others.
    I think that the social media strategy is being used just for the public. Look at us, we are a supermarket for the people, we have low prices and there is a giant supermarket retailer who is fighting us, David vs Golia but digital! Aldi is very much aware that in this lockdown social media is the way to go as people are staying home on their phones/laptops!

    It is a good social media strategy, but that's it! The main fact is that M&S have created a product with specific ingredients, with a peculiar/funny shape which it is usually connected to their brand. Can they prove it? I hope so!
     
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    Jacob Miller

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  • Feb 15, 2020
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    I think that the social media strategy is being used just for the public. Look at us, we are a supermarket for the people, we have low prices and there is a giant supermarket retailer who is fighting us, David vs Golia but digital! Aldi is very much aware that in this lockdown social media is the way to go as people are staying home on their phones/laptops!

    It is a good social media strategy, but that's it! The main fact is that M&S have created a product with specific ingredients, with a peculiar/funny shape which it is usually connected to their brand. Can they prove it? I hope so!
    I've got to be totally honest and say that I've actually lost a huge amount of respect for Aldi throughout this dispute, so much so that I really would think twice before shopping there again in the future. I think the way they've handled it, while evidently being a PR success, is actually quite disrespectful to the litigious process.

    I hate what I see as a victim complex/ "oh no we're the good guys democratising caterpillar cakes" type attitude on their part when what they have blatantly done is rip off and copy an idea. It's not as if Marks are suing a local corner shop: they're a multinational group with tens of billions in global revenue!
     

    S87

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    I've got to be totally honest and say that I've actually lost a huge amount of respect for Aldi throughout this dispute, so much so that I really would think twice before shopping there again in the future. I think the way they've handled it, while evidently being a PR success, is actually quite disrespectful to the litigious process.

    I hate what I see as a victim complex/ "oh no we're the good guys democratising caterpillar cakes" type attitude on their part when what they have blatantly done is rip off and copy an idea. It's not as if Marks are suing a local corner shop: they're a multinational group with tens of billions in global revenue!
    That..the disrespect!

    I agree so much with what you said!

    There is now a predominant attitude of "us vs them". M&S does not go out for the sake of going against a smaller (mmm let's see the sales) retailer, there is a process, a study and hard work when launching a product.

    We are becoming accustomed to criticising people who have a higher preparation (study) because we feel like we know better, I am guilty too sometimes. This is a serious legal matter, not a social media kardashian stint!

    You are not the good guys because you are selling cheaper booze!
     

    Jacob Miller

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  • Feb 15, 2020
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    That..the disrespect!

    I agree so much with what you said!

    There is now a predominant attitude of "us vs them". M&S does not go out for the sake of going against a smaller (mmm let's see the sales) retailer, there is a process, a study and hard work when launching a product.

    We are becoming accustomed to criticising people who have a higher preparation (study) because we feel like we know better, I am guilty too sometimes. This is a serious legal matter, not a social media kardashian stint!

    You are not the good guys because you are selling cheaper booze!
    Unfortunately, there are hundreds of examples of similar instances in all walks of life.

    Even in my own hobbies, I can think of several. I know people who have had original tattoos done, for example, where the tattoo artist has drawn it up originally for them etc... only for someone else to have another, morally questionable, tattoo artist rip the design off and get it themselves. Similarly, I know of many coffee equipment manufacturers whose designs have been ripped off in the past and blatantly copied by other companies. It irks me a great deal!

    Don't get me wrong, I think supermarkets like Aldi and Lidl serve an extremely important position in modern society: they enable people to access produce and groceries at a much more competitive price than others, and in so doing make it viable for a lot more people to make healthier, more nutritional choices when feeding families on a budget etc. What I'm largely getting as is that I feel they should be able to carry out that same role without just copying and undercutting others' ideas.
     
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    Dheepa

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  • Jan 20, 2019
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    Unfortunately, there are hundreds of examples of similar instances in all walks of life.

    Even in my own hobbies, I can think of several. I know people who have had original tattoos done, for example, where the tattoo artist has drawn it up originally for them etc... only for someone else to have another, morally questionable, tattoo artist rip the design off and get it themselves. Similarly, I know of many coffee equipment manufacturers whose designs have been ripped off in the past and blatantly copied by other companies. It irks me a great deal!

    Don't get me wrong, I think supermarkets like Aldi and Lidl serve an extremely important position in modern society: they enable people to access produce and groceries at a much more competitive price than others, and in so doing make it viable for a lot more people to make healthier, more nutritional choices when feeding families on a budget etc. What I'm largely getting as is that I feel they should be able to carry out that same role without just copying and undercutting others' ideas.

    Just to add to this, I found this rather old article on multiple other instances in which Aldi has created knockoff products. I personally love Aldi, but seeing that they have ripped off comparatively smaller businesses does rub me the wrong way.
     

    S87

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    Sep 4, 2018
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    Unfortunately, there are hundreds of examples of similar instances in all walks of life.

    Even in my own hobbies, I can think of several. I know people who have had original tattoos done, for example, where the tattoo artist has drawn it up originally for them etc... only for someone else to have another, morally questionable, tattoo artist rip the design off and get it themselves. Similarly, I know of many coffee equipment manufacturers whose designs have been ripped off in the past and blatantly copied by other companies. It irks me a great deal!

    Don't get me wrong, I think supermarkets like Aldi and Lidl serve an extremely important position in modern society: they enable people to access produce and groceries at a much more competitive price than others, and in so doing make it viable for a lot more people to make healthier, more nutritional choices when feeding families on a budget etc. What I'm largely getting as is that I feel they should be able to carry out that same role without just copying and undercutting others' ideas.
    Preach
     

    SS1

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    Nov 5, 2020
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    Yes you're thinking of Epic Games (the people behind the very popular game Fortnite) in its antitrust dispute with Apple! A really interesting case on so many levels that is covered in a lot of detail on 'The Commercial Awareness Podcast' which I'd encourage you to give a listen if you haven't already :)
    Hi Daniel:
    Where can I find 'The Commercial Awareness Podcast'. the one I can see on Spotify has not been updated since December 2020??