How to avoid rebranding and the Toblerone case
By Delfina Sejas.
We all know the iconic Toblerone packaging, yellow and with a mountain. For many, it is just a mountain, but in fact, the main logo of the Mondelez trademark represents a Swiss mountain known as the “Matterhorn”. Switzerland was where the U.S. company produced the well-known chocolate in the shape of “triangles”, that is strongly inspired by where it came from, as so it is said that the shape of the iconic bar comes from this mountain.
Due to a change in the company’s chocolate production, Mondelez was forced to change its Toblerone trademark. The international chocolate producer made the decision to move part of the production to Slovakia.
As a result, Mondelez must change Toblerone’s figurative sign to a common mountain and, also, remove its phrase “Swiss chocolate” replacing it with “established in Switzerland in 1908”, both of which are considered indications of origin from the Swiss chocolate.
The grounds for the changes were based on the Swiss Trademark Law which in article 48 provides that 80% of the raw material from which a food product is made must be from the place where it is intended produced, to be used as geographical designation and/or indication of origin. This percentage is higher in the case of milk and dairy products, where the number increases to 100%.
What would happen in a similar case locally, according to Argentine regulation?
Laws No. 25.380[1] and 25.966[2] regulate this matter, and differentiate the concept of “Designation of Origin” with respect to the “Indication of Origin”. The first one identifies a product originated in the territory of a country and/or a region or locality. The quality or other characteristics of the product must be considered so that they are fundamentally attributable to its geographical origin.
On the other hand, the “Denomination of Origin” is the name of a region, province, department, district, locality, or area of the national territory duly registered, that ends up identifying a product by attributing to it certain qualities or characteristics that are exclusive or essential of that place. Both natural and human factors are taken into account.
The possibility of using a designation and/or indication of origin will be subject to the approval of a “Designations of Origin Council”, which analyzes the requirements in order to apply for its use.
Although Argentine law does not specifically regulate a certain percentage of food production as Swiss Law does, article 4 of the regulatory Decree No. 556/2009[3], provides that for agricultural or food products to be covered by a designation of origin, they must be closely associated with the place whose name they bear.
In addition, it determines which are the qualities for a product to be considered by a designation of origin and divides them into two:
- “The qualities or characteristics of the product must result exclusively or essentially from the particular geographical environment of the place of origin. This expression includes both natural factors; such as climate, soil, water or similar; and human factors as typical or local knowledge or practices, etc.;
- The production of raw materials and processing, from the beginning of the production chain to the final product, must take place in the given geographical area whose name the product bears. The characteristics expressed by the product have a direct and objective association with the geographical area.”
Considering the above, it is very important to perform a thorough analysis of the product before using a designation or indication of origin and/or any modification to it. OjamBF is an expert in these matters, do not hesitate to contact us.
For further information please contact: dsejas@ojambf.com.
[1] Legal regime for designations of origin and indications of origin of agricultural products and food.
[2] Legal regime for designations of origin and indications of origin of agricultural products and foodstuffs
[3] Legal regime for designation of origin and indication of origin for agricultural and food products – Regulation of Law 25.380 and its amendment 25.966.
