In a case reminiscent of the KitKat dispute, Poundland and Toblerone owner Mondelēz (formerly Kraft Foods) have apparently settled their intellectual property dispute.
The original and well known Toblerone was invented in 1908 by Theodor Tobler and Emil Bauman, with a distinct triangular shape. According to the Toblerone website, "Toblerone" is a play on the names "Tobler" and "Torrone", the Italian word for honey and almond nougat. The shape is said to be inspired by the Matterhorn. Any design rights that may have existed in the original bar have long since expired.
However, Mondelēz own a number of registered trade marks for the Toblerone brand, including for the shape of the product and the packaging.
Toblerone redesigned its bar slightly in November 2016 in an effort to reduce costs, a step partially blamed on Brexit and the mounting cost of ingredients.
The redesigned bar drew some criticism from consumers, and according to Poundland it was partly this, which led them to create their own product, Twin Peaks. As the name suggests, the Poundland product features two triangular shapes rather than the single triangle of the Toblerone, which Poundland claim to be inspired not by Toblerone but by the Wrekin and Ercall hills in Shropshire. The proposed packaging for the product was a, not dissimilar, light gold wrapper.
The product was due to launch in July, however Mondelēz commenced legal proceedings for trade mark infringement and passing off and the production (of apparently 500,000 bars) was delayed.
Poundland countered that the trade mark in the shape was not distinctive (on the same lines as the KitKat case). They also argued that their design “is new and creates a different overall impression upon the informed user”.
On the information available, it looked like Mondelēz had a strong case, particularly given the similar packaging. However perhaps not wanting to risk losing any of its trade marks or let itself get hurt this time, and perhaps because Poundland is also a customer of Mondelēz, the parties appear to have reached a pragmatic and commercial settlement avoiding the uncertainty and costs of litigation.
The 500,000 bars Poundland currently have in production will now apparently go on sale in December (presumably at the price of £1) but in different packaging distinguishing it from the Toblerone brand. Beyond that, Poundland say they will relaunch the product in the New Year with a modified shape, but still inspired by the Wrekin and Ercall Hills in Shropshire. "The mountains still high, yet something is different", they might say.
It is not known if there was any financial element to the settlement.
For more on Toblerone - http://www.toblerone.co.uk/
For more on Poundland - https://www.poundland.co.uk/
For David Lynch's Twin Peaks fans - https://www.youtube.com/watch?v=ujDB5ao1JCg
“Following positive discussions, we can confirm Poundland and Mondelēz have come to an agreement that allows both businesses to put their Twin Peaks dispute behind them,”