If we had to list the world’s problems we might include climate change, pollution, over population and the endless squabbles over who should be in charge but in the real world of cake manufacture and copyright the priorities are quite different. Just when you think that the whole copyright can of worms makes sense something comes along to shake your resolve. It all seems straightforward. You can’t use someone’s intellectual property without consent unless you can claim fair use. Fair enough.
Marks & Spencer, the British retail giant, has begun legal action against Aldi, arguing that their Cuthbert the Caterpillar cake is so similar to their Colin the Caterpillar cake that people will be confused and buy the wrong one. Ah, now I understand. The FAKE. However, it’s not just Aldi getting in on the act. Waitrose has Cecil the caterpillar, Sainsbury has Wiggles the caterpillar, Tesco has Curly the caterpillar, and Asda has Clyde the Caterpillar. No doubt M&S will be suing each of them in turn.
The bakers who make the aforesaid M&S confection have much in common with van Gogh, Rembrandt, Picasso and all of the usual suspects when it comes to forgery. The authorship of a piece of art often rests on assessments of form, colour, and touch by experts with nothing more to guide them than intuition refined by experience. Much about every work of art is up for grabs: its intention, its meaning, and sometimes, even, the identity of its maker. That is why it is every dealer’s curator’s, art historian’s, and art critic’s nightmare to try and identify fake art. Museums the world over are apparently full of fakes and the best that can be offered in terms of helpful labels is ‘in the style of’ and even if the copyist is caught out what can you do if you don’t want to admit that your experts are in fact plainly wrong.
Can the same be said of cakes? Marks and Spencer believe so. The imprint of their master bakers is unmistakeable and just in case it isn’t, the British High Court presumably will have a Colin the caterpillar and its clones presented to them on the bench for comparison. The problem for the High Court however lies in the idea of the aforesaid cake more than the actuality. While there are similarities, the colouring and placement of the chocolate drops, and even the size, can and does vary enormously. However, M&S remain undaunted. They have the authentic article. Or do they? The first iteration of Colin appeared in the women’s Weekly magazine some decades ago in the 20th century so that every housewife [men, apart from Michelin chefs, didn’t cook in those days] could make their own version.
But M&S are looking to establish the difference in terms of quality as a second line of defence should the ‘fake’ argument fall flat. Their bakers are the Leonardos and Michelangelos of the baking industry and must be by common account, undisputed geniuses and we should be prizing their work as a unique imprint of an exalted self. When art experts can’t tell a fake van Gogh from a real one, what chance have High Court judges when it comes to cakes. However, having said that, those that enter cakes in country shows in Australia would say yes, there are such geniuses and that prizes are awarded in recognition. The Country Women’s Guild can certainly tell a fake from a pretender even when it comes down to the finer points of hot air trapped in a scone. When it comes to Colin and his clones there will no doubt be similar scrutiny of form, colour, [and presumably, taste] by the High Court. M&S hot air will no doubt be a telling factor.
Just in case you’ve never seen one, the cake in question is a sponge with milk chocolate and buttercream, topped with chocolate sweets and a white chocolate face smiling back at the customer. All aesthetically pleasing no matter where you place the chocolate drops. It’s all a question of standards according to M&S. Marks and Spencer claim that their caterpillar is not only distinctly distinctive as art but is of a higher quality and no other company is capable of matching them thus a claim for intellectual property theft has been lodged with the British High Court this week. M&S wants Aldi to remove the Cuthbert from sale and agree not to sell anything similar in the future. Cecil, Curly and Clyde await their fate.
It’s not the first time that confections have ended up on the copyright battlefront.
In 2018, Nestle lost its battle to trademark the four-finger shape of a Kit Kat. Toblerone’s triangular shape was registered in 1998, but in 2017 it took Poundland to court in objection to a version with two rows of triangular bumps. Swiss chocolate maker Lindt & Spruengli successfully sued rival confectioner Haribo, over making what they claimed were similar gold bears. If all of this sounds a bit on the nose and in the ‘who cares category’, confection companies take it all much more seriously than the art world where ‘copy’ and ‘fake’ are bandied about with a degree of resignation. Fifteen copies of the Mona Lisa are enough to drive anyone into cynicism.
If a fake is good enough to fool experts, then it’s good enough to give the rest of us pleasure, even insight. The late Swiss art collector Ernst Beyeler called a fake Rothko a “sublime unknown masterwork” in 2005 and hung it in his namesake museum. That Rothko hadn’t got around to painting it was immaterial? But then again, a fake Colin may fool everybody because once the wrapper comes off who is to know? Well M&S will know. They can taste quality. And what are they worried about anyway? Like collectors all over the world, buyers of M&S Colins will more than likely stick to their favoured store. If you are doing your weekly shop at M&S you are hardly likely to tramp down the road to buy a sponge caterpillar at Aldi, now are you? The vagaries of competition notwithstanding, surely the High Court’s time could be better employed than having to compare Colin to Cuthbert, Cecil to Wiggles and Curly to Clyde unless of course sponge Colins are to be added to those goods sporting royal patronage. That would certainly set them apart from the clones.
The media almost always overlook what is truly interesting about fakes: not who made them, who sold them, or who was in on the scam and who was not, but what they tell us about who produced it. M&S must have very deep pockets. Suing anyone over infringement of copyright could send you to the cleaners or round the bend and when the Women’s Weekly cookbook offers a recipe to create your own version of Colin and Clyde and Cyril, albeit with random choice as to where the chocolate buttons go, it all comes down to a tantrum in my opinion.