M&S hits back at Aldi's Cuthbert the Caterpillar cake revival

Colin and Cuthbert caterpillar cakes

Marks & Spencer has stepped up its caterpillar rights wrangle with Aldi after the discounter said its Cuthbert cake was returning for charity.

Aldi had stopped selling the cake in February, two months before M&S accused the supermarket of infringing its Colin the Caterpillar trademark.

But now sales of a limited edition version will benefit Teenage Cancer Trust and Macmillan Cancer Support.

M&S said it loved a charity idea, but Aldi should use its own character.

Unveiling the idea on social media, Aldi said: "Let's raise money for charity, not lawyers."

M&S replied that a cake based on Aldi's Kevin the Carrot commercials would be better, adding: "That idea's on us."

Rival versions

Last week, M&S lodged an intellectual property claim with the High Court. It said Cuthbert's similarity with its own Colin cake led consumers to believe they were of the same standard and "rides on the coat-tails" of M&S's reputation.

The retailer has three trademarks relating to Colin, which it believes means Colin has acquired and retains an enhanced distinctive character.

Rival supermarkets, which all sell caterpillar cakes of their own, remained tight-lipped in the face of the action by M&S, which said it had "not ruled out" pursuing other retailers as well.

• The food and drinks with trademarked shapes

• The battle to stop people from copying shapes

M&S said it wanted Aldi to agree not to sell anything similar in the future, but it clearly had not bargained on Aldi's latest cheeky charity-related move.

"Hey Marks and Spencer we're taking a stand against caterpillar cruelty. Can Colin and Cuthbert be besties?" said Aldi on social media.

"We're bringing back a limited edition Cuthbert next month and want to donate all profits to cancer charities including your partners Macmillan Cancer Support and ours Teenage Cancer Trust," it said, using the Twitter hashtag #caterpillarsforcancer.

Aldi said it was calling on other supermarkets to join it in raising money for cancer charities through the sale of caterpillar cakes.

M&S tweeted back: "Hey @AldiUK we love a charity idea (Colin's been a BIG fundraiser for years). We just want you to use your own character.

"How about #kevinthecarrotcake ? That idea's on us... and we promise we won't do Keith."

Colin the Caterpillar was launched by M&S about 30 years ago. His appearance has been substantially unchanged since around 2004, except for adaptations for events such as Halloween and Christmas, and related products such as Connie the Caterpillar.

Colin is central to M&S's partnership with cancer charity Macmillan, and the retailer has created a Colin product for the annual World's Biggest Coffee Morning fundraising event.

The cake is a sponge with milk chocolate and buttercream, topped with chocolate sweets and a smiling white chocolate face.

M&S was the first retailer to sell a caterpillar cake, but many supermarkets have since created their own similar products.

Other cakes include Waitrose's Cecil, Sainsbury's Wiggles, Tesco's Curly and Asda's Clyde the Caterpillar.

"Aldi is known to sail close to the wind on creating products which look and/or sound incredibly similar to other brands," said Gary Assim, an intellectual property specialist at law firm Shoosmiths.

"M&S may find their case against Aldi difficult, since there are other caterpillar cakes on the market. They should have taken a zero-tolerance approach from the start if they felt that Colin and Connie were so important to them."