See the Difference in These Chocolate Bars? The Court Struggled a Bit Too

Toblerone vs. Poundland – two chocolate companies just fought out a court battle.  Toblerone, owned by Mondelez International, an American company, made the decision to reconfigure the shape of their Toblerone chocolate bars. The company slimmed down the summits and widened the valleys in between those summits. With the change, the British customers were agitated with Mondelez because there was less chocolate and a higher price. Enter Poundland, a British company, that decided there was a niche opening and an opportunity.

Poundland developed a candy bar with peaks and troughs, but its shape had a double set of peaks between each trough. Poundland maintained that its peaks were modeled after the English countryside and not the Matterhorn. Alan Cowell, “Toblerone vs. Poundland: A Chocolate Food Fight,” New York Times, December 6, 2017, p. A4.

Poundland’s new “Twin Peaks” bars were sold in a golden wrapper with red lettering, just like Toblerone. And Poundland’s new bar weighed more than the reduced-weight Toblerone resdesign and cost less – one pound or $1.35. Toblerone bars were the same price, despite the smaller size

The court found that the Toblerone design was not sufficiently unique to be protected.  Although Poundland was initially restrained in July 2017 from selling its new candy bars, the two parties reached a settlement whereby it would redesign the wrapper so that customers would not be confused as to what they were buying. The new wrapper is blue with gold lettering.  Also as part of the settlement, Poundland will sell the first 500,000 run of the bars and then offer a newly redesigned bar with peaks that better resemble the English countryside’s rolling hills.

The litigation was ended because the parties were able to reach a settlement. The court never reached the issues of infringement or appropriation.  The extent of customer confusion as well as the number of Toblerone candy bars not sold would have been part of the case as well Both companies announced the settlement with praise for each other in handling the dispute.

DISCUSSION STARTERS

What intellectual property issues would be involved in a case such as this one?

Why is the likelihood of consumer confusion an issue in these cases?