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In 2021, a caterpillar cake went to court. An actual chocolate cake, with a little white chocolate face, at the centre of a High Court trademark claim.
Marks and Spencer has sold Colin the Caterpillar since 1990 and holds the trademark. So when Aldi turned up with Cuthbert, a suspiciously similar chocolate caterpillar with the same smiling face, M&S sued. The claim was that Cuthbert rode on the coat-tails of Colin’s reputation. Passing off, in the legal words. A knock-off, in everyone else’s.
Here is where it gets good. Aldi did not lawyer up in silence. It logged on. It announced that Cuthbert had been found guilty, of being delicious, and started the hashtag FreeCuthbert. It mocked Cuthbert up behind bars, serving twelve years, not twelve people. Every reply was a gift to the timeline.
The public picked a side within hours, and it was not the one with the trademark. M&S, a much loved British institution, had somehow cast itself as the giant suing a discounter over a children’s birthday cake. Aldi was the cheeky underdog, and everyone loves the cheeky underdog. FreeCuthbert trended for days and put Aldi in every national paper, for the price of a few tweets and a designer’s afternoon.
Aldi did not really win in court. The two settled the following year, out of the public eye, and Cuthbert came back in a slightly different shape. But the courtroom was never the arena that mattered. Aldi won the week, the memes, and a pile of free goodwill, because it answered a legal threat with a joke instead of a press release.
That is the lesson worth keeping. When a bigger rival comes for you, the instinct is to go quiet, serious and defensive. The opening is usually the opposite. A giant picking a fight with a smaller, funnier opponent is the underdog’s dream, because the crowd was always going to root for David, especially when David is holding a caterpillar cake.
The best response to a lawsuit was not a better lawyer. It was a better sense of humour.