Mondelez’s Toblerone may have grounds for candy shape-based lawsuit against Poundland

18-Jul-2017 - Last updated on 19-Jul-2017 at 12:15 GMT

Poundland is still developing its Twin Peaks chocolate. Photo: Poundland's Facebook

Related tags Trademark Brand Brand management Toblerone

A British business advisory lawyer says Mondelēz could take action against Poundland for launching Twin Peaks chocolate that looks like its Toblerone brand because of its “unique and distinctive” shape.

The UK discount retailer announced it would sell the product with a Facebook post last month, saying “mountains of value that’s choctastic. Our new ‘Twin Peaks’ chocolate is coming to a Poundland near you soon. We still love ya Toblerone”.

Retrieved for redevelopment

Poundland has delayed the launch after The Guardian reported the discount retailer received a legal letter from Mondelēz. However, a Mondelēz’s spokesperson told ConfectioneryNews the company is not in a position to deny or confirm how Guardian obtained the info, and it did not comment on the existence of the legal letter.

“Twin Peaks is still in development,” Poundland said in a statement. “However, we don’t yet have a launch date. As soon as we do, we will let our customers know.”

Hi, It is still in production however we don't yet have a launch date. As soon as we do we will let our customers know :)
— Poundland (@Poundland) July 18, 2017

Twin Peaks contains double peaks of chocolate chunks in its products instead of one peak, and it would have been 30 grams heavier than the current Toblerone available in the UK market.

The announcement of Twin Peaks came after Mondelēz reduced the weight of two Toblerone products in the UK prior to Christmas last year because of higher cocoa costs. The weight change was achieved by extending spaces between triangular chocolate pieces, this site previously reported.

Steve Kuncewicz Photo: Salter and Gordon

“I don’t think anybody should rule out the fact that Mondelēz might take [legal] actions in this particular case.”

Lawyer’s view: Toblerone’s design is ‘iconic’

Intellectual property lawyer at Salter and Gordon, Steve Kuncewicz, said the case is similar to Nestlé’s recent attempt to register its four-finger KitKat shape as a trademark in the UK.

The Court of Appeal denied the bid, saying the KitKat shape alone, without branding, had failed to gain distinctiveness to be registered as a shape mark.

However, unlike KitKat, Toblerone is such an “iconic piece of confectionery that is known by its shape as much as by its brand name,” Kuncewicz said. “It’s the shape of the Toblerone bar that people are identifying with.”

“But what [Twin Peaks] is doing is trying to call to mind their product and coming up with a new brand,” he added. “Poundland may say its product is set up differently, but the law may not see it that way.”

“I don’t think anybody should rule out the fact that Mondelēz might take [legal] actions in this particular case,” Kuncewicz said.