Confectionery manufacturer Mondelez has announced that it is changing the design of some of its Toblerone bars to put bigger gaps between the triangular sections. The change has sparked outrage among some fans. But what does it mean for Mondelez’s trade mark registrations? The manufacturer has a number of trade mark registrations for the familiar shape of the Toblerone bar, and also has protection for the three-triangle miniature version of the bar. As of today, it doesn’t appear that Mondelez have filed any trade mark or design applications for their new-look shape. It’s unlikely that the new shape of bar would be considered similar enough to those existing registrations to constitute ‘use’ of the mark, raising the possibility that these registrations will become vulnerable to cancellation if Mondelez drops its familiar shape entirely, in favour of the new ‘gappy’ version. Of course, brands need to update their look periodically. And brands need to be able to respond to other commercial pressures –Mondelez have said that their new shape has been adopted in response to the increasing price of ingredients. But it’s important to have protection in place for new brand styles, and to ensure that existing brand equity isn’t accidentally lost when a brand is updated. If Mondelez sees their new shape as a trade mark, in the same way as their old shape, they might want to consider registering it in order to avoid leaving ‘gaps’ in their protection.
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