Marks & Spencer back in court over Swizzels Percy Pig ‘copycat’

Marks & Spencer is back in court – this time over its famous Percy Pig sweets.

The retailer has filed a joint copyrights infringement claim with German manufacturer Katjes against sweetmaker Swizzels over its Pigs Mugs treats, which it has claimed to be a copycat version of its Percy Pig gums.

The case has been filed at the High Court earlier this week, with official papers showing M&S is after damages as well as an injuction against Swizzels to stop it from selling Pigs Mugs.

M&S has also accused the sweetmaker of “free-riding” on the back of Percy Pig’s reputation in the UK, which has grown since the treats first hit the shelves in 1992.

It now sells more than 20 million packs a year and has expanded the Percy brand to an array of other products.

Meanwhile, Swizzels’ pig-shaped sweets have been selling in corner shops and online since 1996.

“M&S has a proud history as a leading British innovator and for over 136 years customers have turned to M&S for unique, original, quality products – conceived, created and developed alongside trusted suppliers and produced to the highest standards,” an M&S spokesman said.

“M&S and Katjes have made significant investment in building a strong Percy Pig brand over the past 30 years and believe it is important to protect the registered trademarks relating to Percy Pig’s appearance.”

Joel Smith, intellectual property partner at law firm Hogan Lovells, said it would be difficult for M&S to argue that Swizzels had acted unfairly.

“It is indisputable that ‘Percy Pig’ has built up substantial goodwill and reputation in the UK since M&S launched the sweet in 1992.

“M&S’s arguments centre on Swizzels’ Pig Mugs gums, being both confusingly similar to Percy, or where the public can distinguish the two products, whether Swizzels are benefiting from the clear link generated between the two.

“However, with Swizzels’ almost 26 years of concurrent use, the hurdle for M&S is whether this is an example of honest co-existence, or whether Swizzels has acted unfairly.”

It is still unclear when the High Court ruling will be delivered.

An M&S spokesman said: “M&S has a proud history as a leading British innovator and for over 136 years customers have turned to M&S for unique, original, quality products – conceived, created and developed alongside trusted suppliers and produced to the highest standards.

“M&S and Katjes have made significant investment in building a strong Percy Pig brand over the past 30 years and believe it is important to protect the registered trademarks relating to Percy Pig’s appearance.”

The case is reminiscent of the high-profile legal battle that pitted M&S against Aldi, in which the upscale grocer sued the German discounter for “ripping off” its popular birthday cake Colin the Caterpillar.

Aldi’s own Cuthbert the Caterpillar escaped legal wrath after the two parties reached a deal earlier this year, allowing it to continue trading, albeit with a slightly different appearance.

Last month, The Grocer reported that copycat products were ”artificially hiking prices in cost of living crisis”, according to evidence sent to Trading Standards and the Competition & Markets Authority by the British Brands Group.

”With the cost of living going up, and consumers moving to the cheaper alternatives, we predict more disputes in this area,” Smith said.