This is not just any IP dispute…
The Marks & Spencer and Aldi caterpillar cake dispute continues to make headlines and while it’s not the first example of a copycat design resulting in a legal complaint, Partner and Head of Creative, Digital and Marketing, Steve Kuncewicz believes it will serve as a reminder to retailers of all sizes, whether supermarket giant or independent retailer, of the importance of intellectual property.
In this case, M&S will need to prove that Colin has become so ubiquitous, and his appearance so well known, that any consumer would be able to identify it as an M&S product without any other links to its business and products. Usually that would be a tall order, but there’s an argument that Colin has become such an icon in his own right that M&S could show that any other similar-enough product would cause confusion in the minds of consumers.
Commenting in Retail Gazette, Steve said:
“It’s vital they have sufficient IP protection in place, registered or otherwise, to restrain third party use of any element of a brand or product that’s particularly valuable to their business, which could be damaged by the presence of ‘inferior’ competitors… This is essentially what M&S is arguing in this case.”