Toblerone v Poundland: which peak will come out on top?

The British public were sat at home, minding their own business, tucking in to their favourite triangle treat, when the devastating news was announced.

Toblerone were being reduced in size.

This sparked outrage and upset across the nation. It also has caused a chocolate trade mark battle, which may go on for some time.

In response to the reduction of a Toblerone bar, Poundland decided to release their own triangle chocolate bar, which looks suspiciously familiar.

When announced, Poundland argued that the bar was not a copy of the original peaks as it was based on the double hump on Wrekin Hill in Shropshire, hence the ‘twin peak’ name.

Mondelez, who are the creators of the Toblerone, disagreed stating that they would take legal action against Poundland if they continued to sell their ‘Twin Peak’ bar which they claim to be a copycat version of their Swiss Alps inspired confectionary delight.

It seems that Poundland were not backing down as this week, Mondelez have filed an action stating Poundland have infringed their 3D triangle bar shape trade mark, as well as their other trade marks in relation to the packaging.

However, what makes this battle interesting is Poundland’s response.

They have filed an counterclaim stating that Mondelez’s shape trade mark is now invalid following the reduction in size and difference in shape of Toblerone bars. This change has reduced the mark’s level of distinctiveness and it should no longer be protected by a trade mark.

If Poundland succeeds with the claim, they may have got themselves of the copycat hook.

Also, it puts another nail in the coffin for shape marks, which have proved themselves very difficult to register, at KitKat’s long battle and subsequent failure to register their four finger shape.

This is one to watch for all the chocoholics out there, especially those who like a bargain.

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