Poundland claims Toblerone shape ‘not distinctive enough’ for trademark

Launching own version

 Poundland has claimed that Toblerone’s shape is ‘not distinctive enough’ for a trademark as it defends the right to launch a copycat bar.

In legal documents seen by the Guardian, following a delayed launch of Poundland’s Twin Peaks bar last month, the legal fight has escalated with a claim and counter-claim filed at the high court over the trademark dispute. 

The budget retailer, whose version was due to go on sale last month, was forced to delay the launch after it received a legal letter from Mondalez which makes Toblerone.

The Twin Peaks bar is being manufactured in partnership with a Birmingham chocolatier and has two humps rather than Toblerone’s distinctive one peak, which the company said was ‘inspired by the double hill on the top of the local Wrekin Hill in Shropshire.’

Poundland said that development on Twin Peaks began earlier this year after the makers of Toblerone, which is Poundland’s top-selling item, created uproar when it became a victim of ‘shrinkflation’ as the number of peaks in each bar were reduced, meaning less chocolate.

The company said that by shrinking the bar and reducing the by 20g it changed the shape of its iconic brand.

At the time of launch 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.”

In legal defence documents filed earlier this week Poundland says the triangular peak shape of the Toblerone bar, which was has had a registered EU trademark since 1997, is no longer distinctive partly because of the shape of the new version.

In the papers seen by the Guardian the retailers legal defence claims that any good reputation enjoyed by the Toblerone bar trademark has been ‘irretrievably abandoned’ by the launch of the product with bigger gaps between its nine chunks, which the public ‘consider unfavourably in comparison’.

Poundland also say that the 12-chunk registered version is also no longer on sale in the UK, and a 11-chunk bar has been sold instead since about 2010.

Mondelēz is seeking damages in relation to trademark infringement and said Poundland’s Twin Peaks bar was “deceptively and confusingly similar”.

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