Is Aldi trying to have its cake and eat it? - Kuits Solicitors Manchester

Is Aldi trying to have its cake and eat it?

Is Aldi trying to have its cake and eat it?

16th April 2021 - Published by Kuits Intellectual Property Team

Retailer Aldi has made headlines this week in relation to the sale of one of their renowned lookalike products; Cuthburt the Caterpillar, not to be confused with Marks and Spencer’s Colin the Caterpillar, or is it? Humna Nadim explains.

The story

It has been announced that M&S has issued intellectual property proceedings at the High Court against Aldi, claiming that Cuthburt is too similar to the original Colin cake, which has been sold by M&S for nearly 30 years. M&S hold trade marks for both the name of the product and its packaging, and fear that the similarities between the two products will cause confusion on the part of consumers and lead them to believe that the two caterpillars are of the same standard, or even, exactly the same cake.

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This isn’t the first time that Aldi has defended proceedings of this nature. In 2014, Moroccanoil Israel ltd, the company behind the popular hair product ‘Moroccanoil’, took action against Aldi for their hair product ‘Miracle Oil’ which was sold in the same shape bottle and sported very similar packaging.

Albeit that this was a claim for passing off, which distinguishes the case from the facts in hand,  the arguments presented were similar. This was that the Miracle Oil packaging would act as a misrepresentation to the public that the goods were those of the claimant or associated to the claimant, rather than Aldi’s own product.

Aldi succeeded in defending the passing off claim, specifically, in proving that the public were not likely to assume that Moroccanoil and Miracle oil were the same product or even produced by the same manufacturer, partially due to the claimant’s reputation as a seller of high end products that you would not expect to find at Aldi.

Although M&S is also a high end supplier of quality foods, given that Aldi has started to carry more and more name brands, it will be interesting to see whether the court would arrive at a similar decision on the basis that there is a greater opportunity for a customer to purchase a genuine brand over an Aldi lookalike.

Get in touch with an Intellectual Property specialist in Manchester

If you wish to discuss intellectual property rights, trade mark infringement or passing off within business, please contact Senior Associate Humna Nadim on 0161 838 7816 or email

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