It is not the first time Aldi landed in hot water over the design of some products.
In 2019, it axed a yoghurt range after Collective co-founder Amelia Harvey claimed the products looked too similar to her own. There was also a row between Heck, the sausage brand, and Aldi over similar packaging.
Last year, BrewDog posted on Twitter the similarities between Aldi’s Anti-Establishment Beer and the brand’s Punk IPA.
BrewDog’s boss said at the time it would launch a new beer called Yaldi and claimed Tesco was interested in stocking it. The two firms ended up collaborating on a product after the spat.
Carl Steele, a partner at law firm Ashfords, said: “For many years now Aldi have been selling products under brand names and using packaging that is similar to that of well-known and established brands.
“They do it so in the hope that, when coming across the Aldi product, consumers instinctively adopt the same positive feelings and emotions as they have about the branded product.
“Brand owners resent such activity and regard it as ‘free-riding’ off the brand owner’s time, cost and effort in building up and promoting their brands.”
M&S has registered at least two trademarks relating to the cake. It is a key part of its partnership with cancer charity Macmillan. The retailer created a Colin product for the annual World’s Biggest Coffee Morning fundraising event.
Marks will need to prove that the appearance of their cake was so well known that it had its own goodwill, meaning that consumers would recognise it as being an M&S product without any other visual cues.
If it is successful, M&S will then need to demonstrate that Aldi’s Cuthbert is so similar that it is a misrepresentation to consumers.
An M&S spokesman said the company wanted to protect Colin, Connie and “our reputation for freshness, quality, innovation and value”.