Last month Poundland revealed that its Toblerone-like chocolate bar, dubbed 'Twin Peaks', had been delayed because Toblerone owner Mondelēz said threatened legal action as it felt Twin Peaks was too similar to its own triangular chocolate.
Now Poundland is defending its right to launch its own version with a counter-claim, and court documents (seen by The Guardian) claim Toblerone's triangular shape is no longer distinct enough to be trademarked.
According to the discount chain Toblerone is one of its most popular products, with over 11 million bars sold last year. However, following the poor reception to the newly designed bars it decided to launch a similar product of its own. The idea being that it would be “a British taste, and with all the spaces in the right places.”
Toblerone holds an EU trademark for a 12-chunk bar that has been in place since 1997. Poundland is arguing that this is no longer relevant in the UK, where an 11-chunk bar has been on sale since around 2010. Plus there's that rubbish-looking bar launched last year. Meanwhile Mondelēz claims Twin Peaks is "deceptively and confusingly similar" to Toblerone.
Sally Briton, an intellectual property lawyer at Mischon de Reya, told the paper that Toblerone's case may have been weakened when they changed the bar's shape:
"A trademark is something that distinguishes your goods and services from others. The more you use a mark consistently, the stronger your rights should be. There is an argument that Toblerone is weakening its rights by changing the shape of its bar."
Poundland's defence documents meanwhile claim that Twin Peaks shape was "new and creates and overall impression upon the informed user," thanks to the fact it has a different name and shape. As you can see in this comparison image, Twin Peaks has, as the name suggests, a twin-peaked design and is noticeably different to Toblerone when outside of its packaging. Poundland also noted that the chocolate is 30g heavier than the £1 Toblerones, and also tastes different.
We'll have to see how this plays out, while I try not to buy large amounts of chocolate these days it would be nice to get something like Toblerone but cheaper. Toblerone is damn expensive. [The Guardian]