What is the Colin vs Cuthbert case?
Most of us will have seen the news or social media memes. Marks and Spencer’s have issued an Intellectual Property claim against Aldi. The case relates to their two products – Marks and Spencer’s Colin the Caterpillar cake and Aldi’s Cuthbert the Caterpillar cake.
Marks and Spencer’s hold trademarks relating to some aspects of the Colin the Caterpillar cake. They claim that similarities in the design of Aldi’s’ Cuthbert cake infringes on these trademarks.
What is a trademark?
A trademark is a form of intellectual property.
The Chartered Institute of Trademark Attorneys (CITMA) states that a ‘trademark can be anything that allows consumers to distinguish your goods or services from those of another.’
A wide range of things can be registered as trademarks. Including:
- Sounds
- Shapes
- Colours
- Words
- Logos
As a business or brand, you need to apply to register a trademark. But once you have registered a trademark it affords you certain protections as the trademark owner including the rights to:
- Take legal action against anyone who uses your brand (without your permission)
- Put the trademark symbol next to your brand
- Sell and license your brand
Trademarking a business name or other elements linked to your brand or products helps prevent others from copying these.
What are the risks linked to trademark infringement?
Trademark infringement occurs when a third party, without permission or consent from the registered trademark owner, uses the trademark on their goods or services.
If you are accused of trademark infringement there could be certain risks to your business or brand.
Legal Action – As in the Colin vs Cuthbert case, you could face possible legal action relating to trademark infringement. Legal action can be costly and time consuming.
Reputational damage – If your business is accused of trademark infringement or copying then your business or brand could suffer reputational damage
Having to withdraw a product from sale – ultimately you could find that you have to withdraw a product from sale due to claims of copying
How to protect your business from possible copying claims
If you own a small business, there is the possibility that an intellectual property dispute, such as a claim of copying, could arise. It is therefore prudent to take steps to minimise the likelihood of such claims as well as steps to protect your business in the event of the claim.
Know the market
It is important to be aware of trademarks which currently exist to avoid trademark infringement.
If you are looking to register a trademark you can check if a similar trademark to your registered or proposed trademark exists. In the UK, such searches can be carried out on the IPO website and you can also search UK trademark applications that have been accepted in the last 7 days.
Make your products sufficiently different
Any products, services or brands that you create must be sufficiently different from those which already exist, and are registered, so as not to attract claims of copying.
Aldi are known for creating look alike products and this isn’t the first time they have attracted a legal challenge. In 2019 they faced a claim of copyright infringement from the cosmetic brand Charlotte Tilburyover a ‘lookalike’ make up range. Aldi ultimately lost this fight as it was ruled that there were ‘substantial’ similarities between the 2 products.
Consider intellectual property insurance
Intellectual property insurance is designed to provide indemnity for losses and costs incurred as a result of an intellectual property infringement.
Intellectual property insurance can help your business whether you are facing a claim from a third party against you for infringing their intellectual property. Or if you want to file a claim against someone for infringing your intellectual property.
There are a range of different types of intellectual property insurance available, which you take out will depend on your business and risk profile. If you have any questions about intellectual property insuranceand protecting your business then get in touch with our team of experts who will be happy to provide advice and guidance as to the insurance that your business could need. Contact us on 020 8290 9080 or email us at ip@anthonyjones.com.
