Hot on the heels of Colin v. Cuthbert the Caterpillar and “Glitter Globe Gin Gate”, M&S has kindly (if unintentionally) provided us with yet another brilliant case study in the world of Food & Drink copycats.
Just when we were getting used to M&S being the ones on the warpath, targeting Aldi for their copycat cake and popular Christmas gin, up popped Bath chocolatier Choc on Choc on 21 January 2022 with a post on Instagram, very clearly casting M&S as Goliath against a much wronged David.
Choc on Choc had apparently been selling their “Perfect Match” white chocolate matchsticks since 2015 (with dated files to prove it) and were appalled to learn from a customer that M&S had launched their own virtually identical product for Valentine’s Day under the same name. They accordingly reached out to M&S through the usual legal channels but received no reply, at which point they felt they had no option but to turn to social media to highlight the issue.
Their post on Instagram mentioned Aldi and Cuthbert and accused M&S of “double standards”. While they said they were “flattered” by M&S’ copycat design, they were also “disappointed”, suggesting “these big companies” should commission products and “positively support UK businesses and designers” instead of copying. Ouch.
As the news spread like wildfire on social media, M&S clearly realised they were in for a hammering if they didn’t get this sorted quickly, stating that they take IP rights very seriously and that it was a “genuine mistake”. Speedy negotiations followed, resulting in a settlement whereby M&S would sell off their remaining stock, sell 500 units of Choc on Choc’s own products in M&S stores, commit to Choc on Choc’s request that M&S should accept more ideas from small businesses through their small supplier programme – and collaborate with Choc on Choc for further ranges over Easter and Mother’s Day. Who seemed pretty pleased by the outcome!
So what can we take from this latest example of copying or let’s say “inspiration” in the F&D sector?
- The sheer overcrowding of the F&D space makes it very hard to come up with anything totally new. Even (or especially) for the big boys.
- It’s crucial to keep good (clearly dated) records of your products, designs and other creations.
- Make sure you run checks before launching a new product to make sure no one’s already beaten you to it (M&S would surely have found Choc on Choc’s product had they done so – or maybe they did and assumed there would be no issue…)
- Make sure you protect your products with registered IP rights, especially trademarks and designs. Preferably sooner rather than later, so your rights are clear-cut from the off.
- If you’re a bigger company, remember that working with smaller, more agile companies can be hugely helpful in building your innovation pipeline (we already see this a lot with Tech companies but will we see it more in the F&D and other sectors too?)
- When there’s a dispute, act quickly – the faster you address the issue, the easier it will be to resolve.
- Don’t assume that just because you’re small, there’s nothing you can do.
- Think laterally – the traditional legal route is only one option (as modern day trademark attorneys know only too well!)
- Don’t underestimate the power of social media (either for or against you!)
- Assume that anything you write or say may be shared to the wider public – think carefully about how you’ll come across and don’t write or say anything you’ll regret.
- Handled the right way, a dispute may lead to opportunities for future collaboration and increased sales and/or profile.
- Chocolate is always best eaten, not thrown away (even if it’s infringing)!
Written by Rowena Tolley, Trademark Partner, Head of Food & Drink Kilburn & Strode LLP
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