The Courtroom Battles of Colin, Percy & The Light Up Gin Bottle

Marks and Spencer has been a firm favourite on our high street for many years and has developed a range of well-loved food hall items which they have always sought to protect through the courts...

Colin the Caterpillar

A year ago Marks and Spencer reached a confidential settlement with Aldi after initially launching legal action against them concerning Aldi’s purported copying of their Colin the Caterpillar celebration cake. In the deal Aldi’s Cuthbert the Caterpillar cake lost part of his name, simply being known as Cuthbert, but gained a bowtie, so as to be differentiated from Marks and Spencer’s version. Aldi has since filed their own trademark protection for Cuthbert.

Light up gin bottles

The High Court again saw action between the two retailers early in February 2023 in the battle of the light up gin bottles. Tensions rose when for Christmas 2022 Aldi launched a copycat of Marks and Spencer light up gin bottle which had been a runaway success the year before. Aldi had stated that there were differences between the products, with theirs containing more prominent branding, a more colourful design and a design covering more of the bottle compared to Marks and Spencer’s more minimalist design. Aldi also tried to play down the light up feature of its bottle. Marks and Spencer however stated Aldi could have chosen a different shaped bottle to theirs but did not and also did not exercise its discretion to add different colour flakes, instead choosing gold, like Marks and Spencer.

Despite vehemently refuting the claim, the High Court ruled Aldi has infringed the design rights of Marks and Spencer’s product. Marks and Spencer welcomed the outcome, stating this recognises the importance of protecting innovation and the investment which goes into developing a new product. As a result Aldi may be liable to pay damages to Marks and Spencer. Aldi has said it will appeal.

Percy Pig

But it doesn’t stop there, as Marks and Spencer are currently taking sweet maker Swizells to court over a copycat of their beloved Percy Pig sweets. Seeking an injunction and damages they contest the sweets made by Swizells are so similar to theirs that customers may buy Swizells’s replicas when meaning to purchase their Percy the Pig sweets.

Questions to consider

• Would consumers be confused over the origin of any of the above products do you think?
• Do consumers need to be protected as to the origin of products or are these cases really protecting businesses?