Colin the Caterpillar vs Cuthbert: how did M&S and Aldi end cake war - food fight legal battle explained

Aldi and M&S have been in the courtroom over gin, as well as Colin the Caterpillar (images: Aldi/Getty Images)Aldi and M&S have been in the courtroom over gin, as well as Colin the Caterpillar (images: Aldi/Getty Images)
Aldi and M&S have been in the courtroom over gin, as well as Colin the Caterpillar (images: Aldi/Getty Images) | Aldi/Getty Images

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The two supermarkets had been locked in a copyright dispute over their chocolate cakes

Major UK supermarket chains M&S and Aldi have ended their legal dispute over Colin the Caterpillar and Cuthbert the Caterpillar after a 10-month fight.

The bitter legal dispute over the sweet treats began in April 2021, when M&S said Aldi’s version of its famous cake infringed its trademark as the similarity of the products would lead customers to believe they are of the same standard.

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It’s not been the only fight in the courts between the supermarkets, with M&S also in the process of suing Aldi over its Light Up Christmas gin.

So how did the Colin vs. Cuthbert saga end up in court - and how has the dispute ended?

Here’s what you need to know.

How did Colin the Caterpillar vs. Cuthbert the Caterpillar start?

Colin the Caterpillar has been a staple of the cake scene for more than three decades.

Alongside sweets brand Percy Pig, it is one of M&S’s most well-known and popular product lines and  is also integral to the retailer’s partnership with cancer charity Macmillan.

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Colin the Caterpillar is one of M&S’s best selling products (image: M&S/PA)Colin the Caterpillar is one of M&S’s best selling products (image: M&S/PA)
Colin the Caterpillar is one of M&S’s best selling products (image: M&S/PA) | PA

For the uninitiated (or simply those who live under a rock), Colin is a chocolate sponge log with a milk chocolate and buttercream filling, topped with chocolate sweets and a smiling white chocolate face.

M&S has three trademarks relating to the cake, which the retailer believes means Colin has acquired and retains an enhanced distinctive character and reputation.

So, when Aldi launched its Cuthbert the Caterpillar cake in 2019 there was a lot of potential for trouble.

While most major UK supermarkets sell imitators - Sainsbury’s Wiggles, Tesco’s Curly, Morris by Morrisons, the Co-op’s Charlie, Cecil by Waitrose and Asda’s Clyde - they all look different to Colin.

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This is usually because they have different packaging, different coloured faces, smaller feet or alternative sprinkles.

Cuthbert the Caterpillar skydived back onto Aldi shelves in May 2021 (image: Aldi)Cuthbert the Caterpillar skydived back onto Aldi shelves in May 2021 (image: Aldi)
Cuthbert the Caterpillar skydived back onto Aldi shelves in May 2021 (image: Aldi) | Aldi

Aldi’s version, on the other hand, looked very similar to Colin - too similar for M&S’s liking, with legal action for copyright infringement launched in April.

M&S wanted Aldi to remove its product from sale and agree not to sell anything similar in the future.

“Because we know the M&S brand is special to our customers and they expect only the very best from us, love and care goes into every M&S product on our shelves,” said a spokesperson at the time.

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“We want to protect Colin, Connie and our reputation for freshness, quality, innovation and value.”

The return of Cuthbert the Caterpillar

While Cuthbert had disappeared from shelves in February 2021, Aldi brought it back in May with slightly different facial features.

The retailer also blasted Cuthbert into the sky for a PR stunt - a skydive to raise money for the Teenage Cancer Trust - and started a social media campaign #FreeCuthbert.

Aldi has form when it comes to disputes over the likenesses of some of its products to those of other brands, including spats with yoghurt brand The Collective, Yorkshire sausage maker Heck and BrewDog.

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In the cases of The Collective and Heck, Aldi eventually removed or redesigned the products in question.

Meanwhile, BrewDog responded to the launch of Aldi’s Establishment IPA - a product that closely resembled its own Punk IPA beer - by creating Yaldi.

The businesses eventually ended up working together to produce BrewDog Ald IPA - a limited edition canned beer.

How has the Colin vs. Cuthbert case ended?

It emerged on Tuesday (1 February) that M&S and Aldi had reached a settlement in their Colin vs. Cuthbert legal battle.

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On Thursday (27 January), Deputy Master Timothy John Bowles signed off an agreement in a consent order filed at the High Court.

The order, which was first reported by The Telegraph, allowed M&S’s legal claim to be withdrawn and said the retailers had reached a “confidential agreement” in November.

An M&S spokesperson said: “The objective of the claim was to protect the IP (intellectual property) in our Colin the Caterpillar cake and we are very pleased with the outcome.”

Meanwhile, Aldi Tweeted that Cuthbert was now “free” following the dispute.

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An Aldi spokesperson said: “Cuthbert is free and looking forward to seeing all his fans again very soon.”

However, the case between M&S and Aldi over the gin is continuing.

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