Alright Cuthbert

The caterpillar war may have been settled last year, but it hasn’t stopped Aldi continuing to dig at M&S.

There was the limited edition Cuthbert being sold to raise money for cancer charities, Aldi’s 2021 Christmas advert (A Christmas Carrot) opening with Cuthbert being arrested by two lemon police officer and in 2022 (A Feast of Football) Kevin the Carrot watching a football match with the teams being ‘Cuth’ v ‘Col’.

Then there were the #CuthBack vans in the summer last year, parking outside M&S Stores in a number of cities, including London and Manchester:

It is fair to say that Aldi’s PR team have come out on top in the court of public opinion and using social media to its full advantage.

Aldi have this week reignited the rivalry, with a new advert comparing the prices of various supermarket caterpillar shaped cakes, with a scuffle with Colin and follow up posts and interviews.

Whilst the last segment from the ongoing social media saga is amusing, why else are we commenting on the advert? Comparative advertising!

There are a number of rules surrounding the dos and don’ts of comparative advertising if a competitor’s products are identified in an advert. From a trade mark perspective, if a brand uses a competitor’s product to advertise its own products, there is a risk of trade mark infringement.

As such, to be compliant, a comparative advert must not be misleading, compare the same goods, not take unfair advantage and not cause confusion. The advert is clear on the comparisons being made on a like for like basis and consumers are given sufficient information to know the comparisons being made.

However, comparative adverts should also not discredit or denigrate competitors. Whether the advert falls short in this respect remains to be seen (although am looking forward to the next advert!).

M&S do not appear to have responded to the advert, although they have released a limited edition Coronation Colin, so look out for those!

This article was written by Trade Mark Director Claire Jones.