Why didn't M&S sue other stores for "copycat" caterpillar cakes?

[Star555]

www.bbc.com/news/business-56756731

M&S now suing Aldi for "Cuthbert the Caterpillar"...but why didn't they sue other stores for the their Colin the Caterpillar imitation cakes like Tesco's Curly or Sainsbury's Wiggles?

The aldi one is bloody delicious.

The likelihood is that M&S will shoot themselves in the foot over this one.

People will deliberately go to Aldi now to see what the fuss is about, and even if M&S win the battle on this one they’re likely to lose the war on the whole because once people have been to Aldi for one thing they’re likely to go back. So in fact M&S have provided excellent advertising for Aldi.

It’s also worth bearing in mind that most of these products are manufactured in the same place, e.g. Kellogg’s vs supermarket own brand etc are manufactured in the same factory and then one becomes more expensive with the adding of a logo.

If it becomes apparent that Colin and Cuthbert are manufactured in the same factory then it will obviously then also become apparent that you’re only paying for a logo on the M&S one.

I believe that Colin (and possibly JS's caterpillar) are made by one manufacturer, the rest of the retailers by another. The biggest difference between Colin and Cuthburt is Colin contains buttercream and Cuthburt frosting (cheaper). M&S may also use a slightly better chocolate covering. Cakes get drier the older they are, so if you want to compare them properly you need to try them both at a similar age ie when they both have, for example, ten days life left on them.

The issue will be around the pricing of the cake as much as the look... Cuthburt is hugely cheaper than Colin. Whilst retailers aren't allowed to interfere with other retailers pricing (illegal), they really don't like it when they are massively undercut, especially by a product that looks almost identical. Aldi will have got a lot of publicity from this and will probably just change to a different face for Cuthburt I'm a few weeks time. But that's just my guess!

They’ve just provided aldi with a fuck load of free publicity. I don’t think they can win this one considering how many other copies are available on the market and have been for years. They own the Colin the caterpillar trademark, not Cuthbert the caterpillar.

I just had a look- Aldi's version looks like a complete copy.

You'd be amazed at how thick some people are. When I worked in lush we'd have people coming in after Xmas asking to change smellies they'd bought off a similar pop up market stall in December.

They have a trademark on the design of the cake as well as the name.

M&S would be idiots to sue on the basis of inferior quality damaging their if the cakes were made at the same factory to the same recipe so I think we can assume that that’s not the case.

There's a lot of fun being had on twitter over this. M and s must be flush if they can spend money on lawyers.

M&S have said its because of the poor quality of the Aldi version and cocern that people may try and pass of the aldi one as M&S. I guess the other ones are of a similar quality.

It can't just be the quality, though. If M and S think people will think Cuthbert is poor quality (which they may do - pp said the filling was different, and possibly the chocolate coating too) that wouldn't matter if he didn't look so much the same as Colin. Curly, and Wiggles and so on may also taste different to Colin (poorer quality, or better quality, or just different) - or they may taste the same because they are made in the same factory to the same recipe - but there is no risk of confusing them directly, because they are very different looking. Apart from looking like a chocolate caterpillar cake of course... (but then so did the one I made DS which was MUCH poorer quality than Colin, but, believe me, no one would confuse the two).

I would surmise that it will be combination of the three things; the inferior quality, the fact that it looks almost identical and the price. The Aldi cake is £2 less than M&S, other retailer's caterpillars are only £1 less. Therefore I would imagine M&S would possibly be less bothered about other retailers cakes, which are less similar anyway. Retailers are really sensitive to price perception and won't want customers thinking they are £2 more for an identical cake. Aldi operate on really low margins generally (who knows, the cake may even be a loss leader), and obviously the cake is a lower spec than the M&S one, but customers don't necessarily know that unless they taste them next to each other.

The Asda one is grim, it's as dry as a desert and tooth-achingly sweet at the same time. Didn't actually know that Aldi make Cuthbert although I expect they'll be all sold out now if I try to get one for comparison 😂

It is highly likely that the Asda and Aldi cakes are made by the same manufacturer, the decoration just different.

@Granita1

I would surmise that it will be combination of the three things; the inferior quality, the fact that it looks almost identical and the price. The Aldi cake is £2 less than M&S, other retailer's caterpillars are only £1 less. Therefore I would imagine M&S would possibly be less bothered about other retailers cakes, which are less similar anyway. Retailers are really sensitive to price perception and won't want customers thinking they are £2 more for an identical cake. Aldi operate on really low margins generally (who knows, the cake may even be a loss leader), and obviously the cake is a lower spec than the M&S one, but customers don't necessarily know that unless they taste them next to each other.

Good point! Though MandS customers aren't known for being especially price-sensitive. I'd expect anything I bought from there to be about a third more than from Aldi (at least!) but you pay for convenience, brand trust and perceived quality and not having the stress inducing checkout experience If the cake tasted identical, as well as looking identical, I could definitely see some M&S customers feeling a bit ripped off though. Hence presumably why they are stressing Colin's superiority in their press releases and not the mere fact cuthbert has the audacity to pass as a cheaper Colin to the very discerning palates of 5 year olds.

Sadly, Aldi stopped selling cuthbert in February (wonder why?!) because I'm really wanting to do a direct comparison now.

Based on my knowledge in this field I would say M&S have just had enough of all the rip-off caterpillars (which to be fair, they have spent a lot of time and money developing a brand for) and are using ALDI as a gateway to frighten the other supermarkets.

They won't likely be able to use a 'passing off' legal argument as they are unlikely to convince a judge that the ALDI customer would be genuinely confused by the product on the shelf to the extent that they are buying a 'genuine Colin'. They're therefore using their trademarks (in the name and design) for a straight out infringement action. they are most likely to win against ALDI as visually the two are incredibly similar, even down to the packaging and alliterated name. As others have said, ALDI have form for this kind of thing (as do ASDA) and they might have just got that bit too close to the original design this time.

We had a couple of giant colins at our wedding cake.

@orangegina

I do find it odd they all copy

Colin, Clyde, wiggles. Why can't A supermarket invent Barry the bat or Derek the dog?

Not sure if a Barry the bat cake would be very popular in the current climate!

All this talk about caterpillar cakes makes me want one right now! I'm currently in the US where there are no Colins, Cuthberts, or other copycat versions to be found anywhere. I do wonder what would happen if an American company launched caterpillar cakes on this side of the pond...would they make an independent product with no connection to any of the British ones, or would they do it "under licence" from M&S, etc? If the latter, I'm afraid it may turn out to be disgusting like the Americanised "Cadbury chocolate" which is actually produced by Hershey "under licence" from Cadbury.

I think Cadbury chocolate here is not as nice as it used to be

Have you seen this??

Isn’t Colin £10 and Aldi £4.99

Colin is £7 - that's the shocking truth.

www.ocado.com/products/m-s-colin-the-caterpillar-cake-510989011

Ah, I see. My Easter one was £10.