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.”
Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to clients of BLM. Specialist legal advice should always be sought in any particular case.