Poundland has claimed that the Toblerone is no longer distinctive enough to be a valid trademark, as it attempts to defend its right to launch its own bar Twin Peaks.
The retailer's budget version of the Swiss chocolate bar was supposed to go on sale last month, but the launch was stalled when the retailer received legal papers from Toblerone owner Mondelēz.
Documents seen by the Guardian show that there has been a claim and counter-claim filed at the high court over the trademark dispute.
Twin Peaks bars, which are made in Birmingham and have two humps rather than the distinctive single peak chunks of the Toblerone bar, were to go on sale for £1 in store, with buyers getting more for their money as each pack comes with two rows of chocolate, not just one.
Toblerone was one of Poundland's biggest sellers until it became the victim of "shrinkflation" ahead of Christmas last year. In a bid to cut costs because of the falling pound, Mondelēz reduced the number of humps in each bar, meaning that it contained less chocolate.
Poundland trading director Barry Williams said of Twin Peaks: “Poundland shoppers are savvy and the change in their favourite chocolate bar last Christmas didn’t go unnoticed. That’s why we’ve created a new £1 alternative for them - the size they wanted, with a British taste, and with all the spaces in the right places.”
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In legal defence documents filed earlier this week, Poundland claims the triangular prism shape of the Toblerone bar, which has been trademarked for 20 years, is no longer distinctive enough to own the trademark rights.
The budget retailer claims that any good reputation enjoyed by the Toblerone bar trademark has been “irretrievably abandoned” when it widened the gaps between its nine chunks, which the public “consider unfavourably in comparison”, the Guardian reports.
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Poundland also claims in the court documents that the shape of Twin Peaks “is new and creates a different overall impression upon the informed user”, adding that it had successfully applied for a UK-registered design protection of the bar’s double-humped shape, which it says is inspired by the Wrekin hill in Shropshire near the company’s head office.
While the retailer said its packaging, name, taste and shape were different enough that “no member of the relevant public would mistake one for the other”, Mondelēz insists that Poundland and its supplier Walkers Chocolates have infringed its trademarks on the overall shape of the bar, the pyramid-shaped chocolate peaks, prism-shaped gold Toblerone packaging and the Matterhorn mountain logo.
Mondelēz said Poundland’s Twin Peaks bar was “deceptively and confusingly similar" and is seeking damages in relation to trademark infringement.
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The legal row echoes Nestlé’s battle with rival Cadbury, also owned by Mondelēz, over trademarking the shape of its KitKat bar.
The Swiss company has fought Mondelēz for years over the sweet treat's shape, arguing it was unique. However in May it lost the latest stage of its legal battle after the Court of Appeal ruled in favour of Cadbury, saying the shape was not protected.
The two confectionery giants have been involved in legal battles over trademarks before, with Nestlé triumphing in its campaign to stop Cadbury preventing it using the distinctive purple colour it uses to package Dairy Milk chocolate bars.
Mondelēz declined to comment. Poundland said: "As we’ve consistently said, Twin Peaks is still in development. We’ll share a launch date when we’re able."
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