Poundland has responded to Toblerone’s threats of legal action over its copycat bar by highlighting the bar’s shape is no longer distinctive enough to be a valid trademark.
According to The Guardian, Poundland has issued a counterclaim to the high court after it was forced to delay the launch of its own Twin Peaks chocolate bar under threat of legal action from Toblerone.
Before Christmas last year, Toblerone reduced the weight of its bars and extended the space between the triangle chunks.
The changes, made to maintain its price in the UK, was met with widespread controversy.
In response, Poundland created Twin Peaks bars which are 30g heavier than the Swiss-made counterpart but retailing at the same price.
The discount retailer has made the case that the extended spaces between the chunks of chocolate mean that the Toblerone bars no longer fall under the EU trademark registered in 1997.
“A trademark is something that distinguishes your goods and services from others,” intellectual property lawyer Sally Britton told The Guardian.
“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.
“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.”
Poundland reportedly applied for a UK registered design protection on its Twin Peaks bar and argued that “is new and creates a different overall impression upon the informed user”.
The owner of Toberlone, Mondelēz, has accused the retailer of infringing its trademark and stated the bar was “deceptively and confusingly similar”.