Cuthbert the copy-caterpillar released

Cuthbert the copy-caterpillar released

Back in April last year the Aldi and Marks & Spencer (M&S) copy-caterpillar dispute was big news nationwide. For those catching up, M&S issued proceedings against  supermarket chain, Aldi, for alleged passing off and trade mark infringement of M&S’ Colin the Caterpillar as a result of Aldi selling a lookalike, Cuthbert the Caterpillar.

Having already topped Twitter’s trending topics last year, Aldi yesterday tweeted “Getting out early on good behaviour, keep an eye out for Cuthy B this Spring” alongside the iconic hashtag #freeCuthbert. It has been confirmed by both parties that a confidential deal has been reached which has brought the litigation to an end.

Those who followed the dispute on social media and taste-tested all the copy-caterpillars on the market may well be frustrated that the confidential nature of the deal means we don’t know who has ‘won’. For M&S and Aldi (and many other brands warring over IP), reaching a confidential deal to exit the litigation at a very early stage will likely have been their aim from the outset. The option for the party to file a consent order (known as a Tomlin Order) to settle proceedings with an appended confidential settlement agreement is usually attractive for several reasons. This mechanism means the parties do not have to share all of the detail of the compromises made with the public at large and therefore can save face. Further, the Tomlin Order allows parties to reach bespoke agreements on terms which the Court would not order on conclusion of a trial.

Although the terms are confidential, Aldi’s tweet suggests that the deal struck means Cuthbert will continue to be sold. This is perhaps not surprising given M&S’ legal position did not appear to be the strongest. This was particularly the case where M&S had allowed a number of copy-caterpillars to establish themselves on the market over the years. Despite this, it seems likely that there will be some changes to Cuthbert’s look. No doubt Aldi will use it as a positive (and entertaining) PR opportunity when they unveil him later this year.

This case highlights that social media is playing an ever-present role in IP disputes and particularly those involving well-known brands. It is an important reminder for businesses to be aware of the potential to lose control of the narrative if an opponent is social media savvy. There is always a risk that a claim can therefore become a free advertising campaign if the public mood is against a Claimant. Here, whilst M&S have commented that they are “pleased” with the outcome of the settlement, Aldi are potentially now in an improved position where their product, Cuthbert, is more popular and well known than he would otherwise have been if M&S had not issued legal proceedings. No doubt Cuthbert’s metamorphosis will be closely watched by many. We will keep you updated.