Poundland has claimed Toblerone’s shape is no longer distinctive enough to be a valid trademark, in legal documents defending its right to launch a copycat bar.
Last month, the budget chain was forced to delay the launch of its Twin Peaks bar, which has two humps rather than the single peaks of Toblerone, after a legal warning from the brand’s owner, a Swiss division of Mondelēz.
Sally Britton, an intellectual property lawyer at Mishcon de Reya, said the Toblerone battle covered the same issue of whether a shape could be distinctive enough to function as a trademark.
“A trademark is something that distinguishes your goods and services from others. The more you use a mark consistently, the stronger your rights should be. There is an argument that Toblerone is weakening its rights by changing the shape of its bar,” Britton said.
She said Toblerone clearly was a distinctive shape and, unlike KitKat, already registered as a trademark, which was why Mondelēz was so keen to prevent its mark from becoming generic.
“If other businesses are selling chocolate bars of an identical shape to Toblerone it could be argued that its shape is losing its distinctiveness and is not functioning as a trademark. That’s why Toblerone is taking action,” Britton said.
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