Toblerone v Twin Peaks – Part 2

03 Nov 2017

Earlier this year I posted a blog in response to a dispute between Mondelēz, the makers of Toblerone, and budget retailer Poundland, who had planned to launch their own distinctive chocolate bar called “Twin Peaks” in early July. As a settlement agreement has now been reported, we have decided to revisit the story.

 

As was widely reported, the launch of the Twin Peaks bar was delayed as a result of the dispute with Mondelēz, who alleged that the Twin Peaks bar was too similar to Toblerone’s iconic triangular prism shape. The Toblerone bar  has peaks emulating the Matterhorn mountain but according to Poundland statements, the Twin Peaks bar is inspired by The Wrekin and The Ercall hills of Shropshire, rather than the alpine summit or the Swiss confectionary bearing its resemblance.

 

Regardless, a rare 3D trade mark protects the Toblerone shape from imitations created by rival confectionary makers in the United Kingdom. When Toblerone modified the shape and weight of their 400g (now 360g) and 170g (now 150g) bars, by overtly widening the spaces between peaks, Poundland may have seen this as an opportunity to bring out a copycat product. Mondelēz was unhappy, and benefitting from a second 3D trade mark protecting Toblerone’s distinctive prism packaging, was able to prevent Poundland launching the rival product.

 

Whilst the dispute has continued away from the headlines over the past few months, it was reported this week that the opposing parties have come to an agreement. In a settlement viable for both sides, Poundland have agreed to redesign the shape of their Twin Peaks bar to avoid infringing the Toblerone trade mark. In exchange, Mondelēz will allow Poundland to retail the 500,000 Twin Peaks bars currently in production, provided that they are sold in packaging that is distinct from Toblerone’s. Chocolate lovers will therefore have to be quick to get their hands on the contentious product when it is launched this December.

 

By resolving their dispute through settlement, Mondelēz have been able to protect their Toblerone brand from a copycat product on terms that are acceptable and can be determined by them.  Careful thought is always needed when settling disputes to make sure that the settlement terms are robust, enforceable and reflect what you want them to.

 

Importantly Mondelēz have preserved their relationship with Poundland, who happen to be one of their largest customers, and they have avoided a challenge to their trade marks.

 

The ongoing saga is one of a number of cases involving the intellectual property of confectionary products. For example, just this year the Court of Appeal upheld an earlier decision of the High Court, in which the court found that the shape of Nestlé’s four-finger KitKat was not distinctive enough to be protected by a 3D trade mark. These cases illustrate the care needed in protecting Intellectual Property rights and the importance of staying focussing on commercial objectives during a dispute.

 

If you have a commercial dispute or a concern around the use of your intellectual property, please contact Robert Ganpatsingh at DMH Stallard LLP to discuss your situation.

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