The well-known Dutch chocolate maker Tony's Chocolonely has certainly managed to create a stir.
Under the name Sweet Solution, the company has launched a range of chocolates that is interesting, to say the least. There are four different chocolates. Although each one is branded Tony's and Tony's Chocolonely, one chocolate looks very much like a Kit Kat, one very much like a Toblerone, one very much like a Twix, and one very much like a Ferrero Rocher. These brands are owned by the major competitors of Tony's Chocolonely – Nestle, Mondelez, Mars and Ferrero Rocher.
The shapes of the new products are what Tony's Chocolonely describes as "playful" but we suspect that the other companies might have a different expression for this. So, for example, the Kit Kat lookalike comprises a mix of the unequal shaped blocks used by Tony's and the wafer shapes of Kit Kat.
But why is Tony's doing this? Well, it's apparently intended to draw attention to the problem of slavery and child labour in the chocolate supply chain. Buyers are asked to sign a petition that supports the need for human rights legislation and seeks an end to the use of slavery and child labour in the supply chain.
Tony's Chocolonely's plan was to launch this new range of chocolates in the UK, Netherlands, Belgium, Germany and the USA. But, claims the company, its competitors put serious pressure on the UK supermarkets not to stock these limited-edition bars. We don't have any information on how the launch has gone in the other countries. One report suggests that these bars are now only available on Tony's Chocolonely's website.
So, what are we to make of this? Seeking to end child labour, slavery and other abuses in the supply chain is, of course, totally laudable, but is it justifiable to use the branding of competitors in the process? Cynics might see this as little more than a ruse to increase revenue.
It is, in our view, highly unlikely that any of Tony's competitors will take the legal route. The simple fact is that any legal action would look bad given the anti-slavery/child labour dimension. But assuming we're wrong, what remedy would the law provide?
If this were to play out in South Africa, Tony's Chocolonely's competitors might well have a case, assuming that they had South African trade mark registrations for their labels, registrations that incorporate the colours. Trade mark infringement is dealt with in Section 34 of the South African Trade Marks Act. Section 34(1)(a) prohibits the "unauthorized use in the course of trade in relation to goods or services in respect of which the trade mark is registered, of an identical mark or of a mark so nearly resembling it as to be likely to deceive or cause confusion."
Even in cases where consumer confusion is unlikely to happen, there might still be a claim for infringement under section 34(1)(c), especially as the various chocolate getups are most certainly well known. This section deals with infringement through the use of a similar mark where the registered mark is well known and the use is likely to "take unfair advantage of, or be detrimental to, the distinctive character or the repute of the registered trade mark, notwithstanding the absence of confusion or deception." It's worth bearing in mind that the trade mark laws in most countries have provisions that are similar to these.
We suppose that one lesson to learn from this story is the importance of separately registering the product label, including in colour, as a trade mark, in addition to the word trade mark.
We'll end by mentioning that Tony's Chocolonely very recently discovered that taking the moral high ground is one thing, staying on it is another. The company has been dropped from the Slave-Free Chocolate's list of ethical chocolate companies. Tony's Chocolonely's website says this:
"We have never found an instance of modern slavery in our supply chain, however, we do not guarantee our chocolate is 100% slave free." It goes on to say that "we are doing everything we can to prevent slavery and child labour... [but] we cannot be there to monitor the cocoa plantations 24/7." But it is thinking big: "Our ambition extends beyond our own bar, we want to change the whole industry which involves being where the problems are so that we can solve them...only then can we say we have achieved our mission to make all chocolate 100% slave free."
Originally Published by ENSafrica, March 2021
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