Global snacking group Mondelēz International has reportedly begun legal action against independent UK vegan chocolate business, Catherine’s Originals, over claims concerning alleged Toblerone brand design infringements, reports Neill Barston.

The confectionery giant is said to have filed a case with London’s High Court against the Sussex-based business, claiming trademark and physical design issues are at the heart of its allegation – which the British business has strongly refuted, as per an original report in the Guardian newspaper.

According to the global snacking business, Catherine’s O’Bar 200g product range had sought to pass off a design that is similar to its own classic Toblerone triangle-based confectionery line.

However, the British start-up chocolate company, founded by young entrepreneur Catherine Dodd in 2021, has responded that its O shaped design was in fact a reflection of its “Originals” title, and strongly defended its position of creating a distinctive product that was not based on any existing series of confectionery.

Speaking on the company’s social media channels, the vegan chocolate business owner remarked that there had been an overwhelming response from its customers.

Catherine Dodd said: “The past 24 hours have been crazy – I didn’t even anticipate the amount of people who haven’t even heard of Catherine’s Originals before who would just leave a comment and send their support for us, and I am genuinely overwhelmed.

“We have had a lot of our VIP choco lovers ask how they can help, and where is the crowd funding page towards this, but we don’t feel like doing a crowd funding page is the right thing to do with this.

“Instead, we have created a Battle Bundle on our website – with 15% of sales from those items will go into those legal costs, and that is what is going to help us fight.”

Notably, in recent years, there have been several high profile cases involving Mondelez, and its group of brands, which includes Dairy Milk, Milka chocolate, Oreo, and Toblerone.  Among the most prominent of these instances has been UK store Poundland’s decision to create a chunky chocolate bar with a peak design – which was in fact judged to be too close to that of Toblerone, with the retailer forced to change the appearance of the product range in 2017. These were altered with its peaks becoming ‘smaller hills’ for a subsequent re-release in 2018 following the legal action.

However, Mondelez itself has been no stranger to legal action, including a major case against it two years ago, in which the manufacturer was forced by the European Commission to pay a major fine of €337 million, as it was found to have restricted trade within certain European countries that would have allowed bars to have been bought at a lower price in an alternative location.

As for its latest case against Catherine’s Originals, the matter has been placed before the UK’s High Court for decision.

Commenting on the case, Laurie Bray, senior associate trade mark attorney at European intellectual property firm, Withers & Rogers, remarked: “It’s quite rare for a brand owner to sue another over the shape of one its products.

“Even with a trade mark registration in place protecting the shape of its Toblerone chocolate bar, it could be challenging for Mondelez to prove that the bar made by Catherine’s Originals is sufficiently similar in shape that it would cause customer confusion.

“As a much smaller British manufacturer, a lengthy court battle may be a daunting prospect for Catherine’s Originals, and Mondelez could well decide to take the matter to appeal if the High Court’s decision doesn’t go their way.”

She added added: “It can be very difficult to obtain commercial protection for the shape of a product, but it’s definitely worth considering. In the world of fast-moving consumer goods, and particularly with the rise of dupe culture, protecting the different aspects of a product’s distinctiveness is vital to defend the brand’s market position. When considering a shape mark, it is even more important to seek legal advice in order to get your application right from the start, and to ensure your path to registration is clear.”