Toblerone’s triangular shape is not distinctive enough to have a trademark, according to Poundland ,which has had to delay the launch of its Twin Peaks chocolate bar in an ongoing legal row between the two brands.
Poundland announced that it would be selling its own chocolate bar after Toblerone last year launched an altered bar which weighed less and had larger gaps between the chocolate “mountains”.
But the discount store had to hold off releasing the Twin Peaks bar after a legal challenge from US confectionery company Mondelēz International, which owns Toblerone.
According to documents seen by The Guardian, Poundland has launched a counter-claim against the Swiss chocolate brand saying the trademark’s reputation has been “irretrievably abandoned,” partly because of the new, altered chocolate bar.
Furthermore, Toblerone’s EU trademark, registered twenty years ago, refers to a 12-chunk bar but an 11-chunk bar has been sold in the UK since 2010.
The shop believes its Twin Peaks bar – announced in June 2017 – “creates a different overall impression upon the informed user”.
Every chunk in the Twin Peaks bar is made up of two mounds.
Poundland’s Twin Peaks chocolate bar:
“The double mountain bar, created in the home of British chocolate by specialist Walkers Chocolates, has a distinctive British flavour compared to more traditional milk nougat bars from Switzerland.
“Inspired by the double hill on the top of the local Wrekin Hill in Shropshire, it will be available at Poundland’s famous £1 price point in all stores the first week of July.
“Poundland believes Twin Peaks will offer a true taste sensation to competitors, and has already received rave reviews in secret blind taste tests where two in three customers preferred it to the branded alternative.”
Mondelēz says Poundland’s bar is “deceptively and confusingly similar” because of its shape, packaging and logo.
The Guardian reports that Mondelēz is seeking damages in relation to trademark infringement.
Trademark ‘watered down’
Poundland’s claim is built on the basis that it believes Toblerone’s trademark has abandoned its original shape and so “has been effectively watered down,” Steve Kuncewicz, an intellectual property lawyer at Slater and Gordon, told i.
Steve Kuncewicz, intellectual property lawyer at Slater and Gordon said: "Any action which could affect the value of a trademark can lead to an infringement claim, which is why this case is progressing.”
Mondelēz is currently in the stronger position, according to Mr Kuncewicz, because there is already a trademark in place.
“But it will still need to challenge the sale of any chocolate bars which are similar enough to a Toblerone and its related trademark to stop it from losing its distinctiveness and potentially becoming generic,” he added.
Toblerone changed the weight of its bars in the UK because of the rising costs of products. The 400g bar shrank to 360g and the 170g bar to 150g.
“We carry these costs for as long as possible, but to ensure Toblerone remains on-shelf, is affordable and retains the triangular shape, we have had to reduce the weight of just two of our bars in the UK, from the wider range of available Toblerone products,” the chocolate brand said.
In response to a request for comment, Poundland said: “As we’ve consistently said, Twin Peaks is still in development. We’ll share a launch date when we’re able.”
Mondelēz said it would not be commenting on these reports.