Peak of cheek: Poundland defends its ‘Toblerclone’
POUNDLAND is embroiled in a legal battle with the maker of Toblerone over whether its shape is distinctive enough to form part of its trademark.
The discounter stalled the launch of a Toblerone copycat called Twin Peaks earlier this year, after receiving legal threats from Mondelez.
If Mondelez is able to convince courts that the shape of Toblerone is trademarked and cannot be replicated, it would prevent Poundland selling Twin Peaks. It is thought that Poundland has produced millions of the bars, which may now have to be dumped.
A Mondelez win would set a precedent that could lead to dozens of other own-brand items being removed from shop shelves, lawyers said, with supermarket versions of Weetabix, Shredded Wheat, Cornetto and Freddo Frog potentially threatened. But papers filed at the High Court show Poundland is vigorously defending the case for Twin Peaks. In legal defence documents filed earlier this week, Poundland argued that the treat’s triangular peaks were no longer distinctive, partly because of the new version now on sale.
Mondelez caused uproar earlier this year when the bars were redesigned to have fewer chunks, despite the price remaining the same.
Poundland added that Toblerone’s reputation had been “irretrievably abandoned” and the public consider the new version “unfavourably in comparison”. Historically, Toblerone is one of Poundland’s most popular products, with 11million bars sold last year.
Michael Colledge, senior associate at Russell-cooke, the law firm, said: “There are a number of hurdles that Mondelez will have to overcome, but it is not surprising that they want to protect its trademark relating to the shape.
“It will have to prove that Twin Peaks is similar to Toblerone; that there is the likelihood of confusion; that the public associate the concept of a mountain-shaped chocolate with the brand Toblerone; and that they rely on the shape to identify the product.”
In May, Nestlé lost a long-running battle with rival Cadbury to trademark the shape of its Kit Kat bar in the UK.
Toblerone has a curious image. Many find it quite moreish, even if its triangular chunks seem ill-fitted to the human mandibular anatomy. It is also widely associated in the British mind with airports (where sustainable colonies of prismatic packets have become widely established in duty-free shops), and with the sub-channel Eurostar service (where it may at times seem the only comestible to be found at the buffet). Now the makers of Toblerone are going hammer and tongs with Poundland over the latter’s Twin Peaks bar. It looks like Toblerone, but peakier. Poundland says it is comforting people disappointed by last year’s widening of valleys between Toblerone’s chocolate crags. Toblerone says its peaky profile counts as a trademark. If they can’t stop quarrelling, travellers might turn to Kendal Mint Cake instead.