Caterpillar warfare: forum shopping in a social media age

June 24, 2021

At a time when some of the greatest minds in the world are waging war against Covid-19, the case of Colin the Caterpillar has fallen like manna from heaven for legal commentators and satirists alike. Intellectual property law has a first class track record of delivering seemingly absurd blockbuster cases, but the apparent inconsequentiality of a war between two chocolate covered larvae arguably establishes a fresh pinnacle. It seems fruitless at this stage to anticipate the arguments that may be advanced by the parties, or to second-guess the outcome of litigation should the case reach a post-Brexit English court. Suffice it to say there is something of a delicious irony that in one of the most important trade mark cases of the last decade M&S successfully convinced the CJEU that the scope of protection afforded to trade marks with a reputation should be subject to significant limitations in the name of ‘fair competition’ (Interflora v M&S). For this author, setting aside intellectual property and competition law, the most significant issue arising from Colin’s case concerns the way in which social media platforms are emerging as a forum for dispute resolution. This begs the question: is there a real and growing risk that important cases will be diverted away from the courts by social media, thereby undermining the rule of law?

The online frenzy ensuing from the revelation that Colin’s legal owner M&S is suing Aldi over its Cuthbert the Caterpillar cake is noteworthy for two reasons. Firstly, for how the public has acted unstintingly in its intervention as self-appointed counsel for the respective caterpillars. And secondly, for how these two titans of retail have deftly harnessed public energy to mobilise their own provocative, and adroit, social media campaigns. Guerrilla warfare has turned caterpillar. On the one hand, Cuthbert may point to a palpable lack of consumer confusion that is discernible without the need for the kind of deep, rigorous consideration afforded to the issue by a learned judge. On the other hand, Colin may bask in the glory of his demonstrable fame and repute as the ur-caterpillar swimming against a tsunami of free-riders who seek to genericise and reap where they have not sewn. Beloved as Colin may be, from where this author is sitting it seems that Cuthbert is currently destined for pole position on social media and some observers are already speculating as to whether M&S will be dissuaded from pursuing the claim on this basis. Whilst by no means resolved, it would appear a very real possibility that the High Court will be deprived of the opportunity to pass judgement on the two caterpillars. Therefore, regardless of how engaging and, undoubtedly, humorous it has been to spectate this digital swashbuckling, there are deeper issues at stake. For lawyers, it will be relevant to ask how companies that are unable to ignore social media should manage such complex, fast moving digital ‘trials’ that directly involve their consumers?

Whilst the resolution of myriad disputes by means alternative to traditional litigation is increasingly viewed in a positive light, for critics the long term effects thereof may outweigh obvious short term gains. Despite the growth of arbitration and mediation, many continue to lament the concomitant erosion of judge-made law, which remains the beating heart of our living, breathing English legal system. Moreover, whereas arbitration has baked into it robust provisions that are designed to enshrine the rule of law, this is not necessarily the case for mediation, a reality to which the recent debate concerning the Singapore Mediation Convention attests. In the case of dispute resolution by social media, although by definition such a forum draws disputes away from the private shadows and into the public light, contemporary concerns relating to misinformation and the facilitation of rapid and widespread dissemination of extreme viewpoints by the leading platforms suggest that nuanced legal arguments risk being diluted or worse. Clearly, there are far-reaching consequences should M&S capitulate under the weight of social media ‘pressure’ or, perhaps, follow in the footsteps of Brewdog by deciding that two wrongs can make a right, and respond by mimicking Aldi’s commercial tactics. Ultimately, companies may be best advised by their lawyers to resist the temptation to engage in social media sparring matches altogether.

However, this author would suggest that there exists an alternative narrative. Colin is a millennial and Cuthbert a member of Generation Alpha. Is it time to adjust the legal lens? In the year of Colin’s 9th birthday, Steven Wilf published a seminal paper that fundamentally challenged trade mark orthodoxy and concluded that “a trademark is not authored by the production / marketing of an object in its package but by a joint interpretive enterprise between author and public.” (S Wilf, Who Authors Trademarks? (1999) Cardozo Arts & Entertainment Law Journal, Vol. 17, No. 1) Dispute resolution by social media is arguably Wilf’s conclusion writ large: the public, in its role as joint creator of Colin the Caterpillar, is exercising its de facto ‘right’ to intervene in proceedings initiated by Colin’s de jure custodian. Far from undermining the rule of law, diverting the case away from the courts may reflect the prevailing will of Colin’s collective owners and, by extension, social media savvy companies may be acting in the ‘true’ interest of the greatest number of trade mark owners by fostering consumer engagement with the legal debate.

Compelling as this may sound in the context of the case at issue, we should be mindful that it is by design, rather than by accident, that intellectual property cases are not heard before juries in the English courts. In fact, a great deal of caution is needed. Aldi’s much quoted one-liner, “Let’s raise money for charity, not lawyers”, which superficially reads as a pithy parry and repost to M&S’s proceedings, reveals latent malignancy. As the defendant in an intellectual property case lodged at the High Court, Aldi’s statement publicly derides the rule of law and advocates an alternative state of play according to which the enrichment of Cuthbert should be celebrated, regardless of its justness, since charity will be a beneficiary. The case of Colin the Caterpillar holds a mirror up to twenty-first century society and rampant commercialism, in the face of which the rule of law must resolutely be upheld. If M&S is trying to have its caterpillar cake and eat it, this is a matter that should be resolved in a forum that respects the rule of law. And it is the responsibility of companies and their lawyers to ensure this, despite nudges in the opposite direction precipitated by the growth of social media. Aldi may not wish to curb its customers’ shopping options, but it would be to the benefit of those customers for the firm to think twice about its own forum shopping habits.

As always with seemingly absurd intellectual property cases, there is more at stake than first meets the eye.

Ben Evans holds an LLM in IT & IP Law and is currently researching an integrated property rights and competition law solution to the problem of ‘data advantage’. He can be reached at: / +44 (0) 1603 542 054.