Toblerone may be ruing its decision to increase the gaps between its bar’s iconic triangular peaks after it was argued in a court case that they are no longer distinctive enough to be a trademark.
Poundland has claimed that its new Twin Peaks bar - which bears more than a passing resemblance to the Toblerone - is not an infringement of an EU trademark registered by Toblerone in 1997.
The budget chain claims that Toblerone’s owner Mondelez “irretrievably abandoned” the trademark on the chocolate bar’s shape when it cut the number of chunks from 11 to nine, according to court documents seen by the Guardian.
The registered shape is a 12-chunk version, which hasn’t been on sale in the UK since a previous round of shrinkflation in 2010 reduced the number of segments to 11.
Poundland was forced to delay the launch of its new bar last month after Mondelez sent a warning about trademark infringement.
Poundland’s trading director, Barry Williams, said Twin Peaks was an alternative to Toblerone that offered consumers “a British taste, and with all the spaces in the right places.”
But Mondelez claims Poundland’s bar is “deceptively and confusingly similar” to Toblerone.
In UK law a trademark is something that distinguishes a product from competitors. It can be a word, phrase, logo, sound, shape, design, image, signature or any combination of those elements.
A trademark is infringed if there is a likelihood that people will be confused as to whether the non trademarked goods are in fact the trademarked goods
Mondelez is seeking damages relating to trademark infringement and “passing off” against Poundland and its supplier Walkers Chocolates.
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