The Attack of the Toblerclones – Sale of Poundland’s ‘Twin Peaks’ allowed by Mondelez but only for a limited run!

Poundland announced in June 2017 its intentions to release a mountain-inspired chocolate bar, Twin Peaks, by December.  However, the product’s release was halted after it received a legal letter from Mondelez, the legal owners of the Toblerone brand, claiming trade mark infringement for the overall shape of the bar, the pyramid-shaped chocolate peaks, the prism-shaped gold packaging and the Matterhorn mountain logo.

Rumoured to have shifted almost 40,000 bars in its first month of striking a deal with Mondelez, the Toblerone brand has been one of Poundland’s biggest sellers in its confectionery lines.  Towards the end of last year however, Mondelez came under fire with customers and die-hard Toblerone aficionados when it downsized its bars and as a result changed its shape.  The product’s makers, Mondelez stated the move to reduce the weight of 2 of its bars (one from 400g to 360g and the other from 170g to 150g), without changing the size of the packaging was a result of increased costs of its ingredients.  In ‘response to the unfavourable reception’ of the Toblerone downsizing, Poundland decided to come to the rescue with Fauxblerone, ahem…Toberclone…sorry, Twin Peaks!  Poundland’s trading director, Barry Williams stated that Twin Peaks will be an alternative on their shelves with ‘a British taste, and with all the spaces in the right places’.

Registered on 18 October 1971 by Kraft Foods Schweiz Holding GmbH (a subsidiary of US-based Mondelez International Inc.), the Toblerone bar shape is one of the oldest shape trade marks registered at the UK Intellectual Property Office (UK IPO).  Toblerone must have been advised of its chances of success with defending its shape trade mark in particular, because the parties have decided to settle and have allowed the sale of a limited run of Twin Peaks bars.

This was well played by both parties.  From a legal perspective, the shape redesign due to cost cutting measures has resulted in Mondelez diluting its registered trade mark protection and potentially risking invalidity of its shape trade mark at the UK IPO.  From a commercial perspective, ‘Poundland is an important and valued customer of Mondelez’ and so it was important for both parties to reach an amicable agreement and not sever that relationship.

Poundland will consider a second rebrand for Twin Peaks this year.  At the time of writing this blog, Poundland were only selling a limited run of its 500,000 bars in ‘distinctive teal and yellow-gold packaging’ across its stores nationwide.  I tried to obtain some shape trade mark Toblerclone history, but I narrowly missed this and the bars have completely sold out.  Demand was high around Christmas and some were even reported to be selling on Ebay for fifteen times its original price!