Unless you have been living under a rock for the past couple of weeks, you will be aware that there is an ongoing litigation involving Marks & Spencer and Aldi in which M&S claim that Aldi are riding on the coat-tails of M&S’ famous “Colin the Caterpillar” cake by producing their own version, “Cuthbert”. This action prompted Aldi’s social media team to produce several viral tweets including mock-ups of Cuthbert in jail, “Cuthbert has been found GUILTY… of being delicious” and “Marks & Snitches more like. #FreeCuthbert”. These tweets have received significant engagement across social media platforms and been widely received in good humour by members of the general public.
So what is it all about? M&S have lodged a claim at the High Court in England and Wales claiming that the similarity of Aldi’s Cuthbert to M&S’ Colin (which is covered by a trade mark) may mislead or cause confusion amongst consumers who may be believe that Cuthbert originates or is linked to M&S’ branded product.
Importantly, what this case demonstrates is the additional layer of commercial awareness now required for the modern litigator. Long gone are the days where the general public would only find out about a case if it was picked up by the local court reporter. In the age of social media, lawyers must now consider not only whether their client’s case has legal merit and whether it is commercially viable, but also, whether the potential PR implications of raising an action might outweigh the benefits of a successful judgment. In this case, Aldi’s PR operation paints a ‘David v Goliath’ scenario; a large premium supermarket against a smaller supermarket known for its’ discount products, even suggesting in one tweet that the respective companies should pay ‘#charitynotlawyers’, all of which appears to be winning the battle of public opinion but it remains to be seen whether the court will also be on their side.
This case raises important considerations for businesses that identify that their competitors are selling similar products, or who are contemplating other forms of litigation. Of course, it is not the first of its kind where public goodwill has swung against a large corporation in response to legal action as those of us who remember the McLibel case of the 90s will remember. Will raising a court action potentially allow your competitor to build goodwill with the public? On the other hand, it’s also worth remembering that this is a unique case involving chocolate cakes designed to look like cute caterpillars. The court of public opinion may be less entertained or sympathetic towards other forms of commercial rights infringement.
Nevertheless, in the modern age it is more important than ever when contemplating legal action to fully consider and take advice on all of the potential ramifications of that action including on social media.
Lauren Rae is a specialist Dispute Resolutions and Claims Solicitor and Ryan McCuaig a Trainee Solicitor. We are always delighted to talk without obligation about whether we might meet your needs. For more information contact Lauren or Ryan on 03330 430350.