Colin and Cuthbert kiss and make up

The dispute between Marks & Spencer and Aldi regarding the similarity between two novelty cakes has been widely reported in the media. Marks & Spencer claimed that Aldi had copied its design of the 'Colin the Caterpillar' cake and wanted the Aldi version removed from sale and an agreement not to sell anything similar in future. The two retailers have reached agreement without the need for costly court proceedings – but can a dispute between two multinational organisations about cake have any impact on smaller businesses?

The central point of the case is that Marks & Spencer claimed that Aldi had infringed its intellectual property. Many things are capable of amounting to 'intellectual property' but include ideas such as a story, invention, artistic work, design or even a symbol. 

The pivot to working at home and job insecurity caused by the pandemic have led many people to reassess their lives and consider setting up their own business. There are many things to think about such as whether to use a partnership or limited company, bank accounts, marketing, tax and VAT, but an issue that new business owners and entrepreneurs often will not think about at the beginning of a venture is protecting their intellectual property; that is, protecting their idea. Failure to do this could lead to another organisation 'stealing' or adapting the idea in future, which could have a serious impact on the viability of the original business.

The flipside of this is that it is important for anyone who has a new business idea to try to ensure, to the extent possible, that they are not inadvertently stealing the idea of another business. Failure to check the intellectual property rights that someone else might have for a design, idea, product or logo could mean that the original owner of the intellectual property seeks to assert their rights against a new business owner. At worst, this could lead to the new business owner having to desist from using the idea. Most businesses do not have the money and resources available to them that Marks & Spencer and Aldi have.

It is possible to protect intellectual property which can help to stop the stealing or copying of:

  • the name of a product or brand
  • an invention
  • the design or look of a product
  • things that are written, made or produced.

A party owns intellectual property if they:

  • created it (and it meets the requirements for copyright, a patent or a design)
  • bought intellectual property rights from the creator or previous owner
  • have a brand that could be a trademark.

Anyone with a business idea should consider taking specialist advice when they set up their business.

To discuss this or any other commercial matter, contact us.