Two different types of chocolate bar are offering a tasty backdrop to a key intellectual property dispute, which sees Toblerone at loggerheads with Poundland.
The budget retailer is on the verge of launching its own domestically produced ‘Twin Peaks’ product, which consists of a series of joined up twin triangular chocolate humps. Its official launch has been delayed amid a legal row with Toblerone’s Swiss owner, who claims that the overall shape of the rival product infringes its registered intellectual property rights.
Poundland disagrees. According to press reports, the retailer claims that the Swiss product’s shape is no longer sufficiently distinctive to be a valid trademark. Its case, in part, follows Toblerone’s very public cost cutting decision to reduce the number of triangular pieces in its bar in the aftermath of the Brexit decision. This has been highlighted by Poundland’s implication that the current more slimline version of the bar is different to that protected by the registration, stating additionally that it decided to bring out its own bar in response to Toblerone’s unfavourable strategy.
Trademarks are a way of protecting the way that particular goods and services are distinguished. Typically these consist of the brand name or the logo but can extend to colours, shapes, smells, and even sounds and jingles provided that they are distinctive. Once registered, a trademark gives the registered owner the right to prevent competitors adopting those distinguishing characteristics. But shapes are historically difficult to protect with a trademark, and the alternative of using a registered design is not without its drawbacks.
Whether Poundland’s Twin Peaks bar infringes on the distinctiveness of Toblerone is a question for the High Court to decide. In the meantime, Toblerone remains one of Poundland’s best selling products and until a resolution can be found it remains to be seen whether it will be sharing shelf space with Twin Peaks.
If you have more questions relating to intellectual property or trademarks, do not hesitate to seek specialist advice from Pinney Talfourd’s Commercial Department – email us by using the form to the right.This article was written by Edward Garston, a company commercial solicitor at Pinney Talfourd LLP Solicitors. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of August 2017.