The incident began when a shopper tweeted online, “it looks like Hotel Chocolat is producing for Waitrose,” along with an image of some chocolate products on shelf.
As a response, Angus Thirlwell, co-founder of Hotel Chocolat, clarified, “we’re not making these and feel quite emotional about it.” He later offered consumers, who had bought Waitrose’s chocolate, free Hotel Chocolat’s version as an exchange.
It soon caught mainstream media’s attention, which Thirlwell did not originally expect. However, he said the media exposure actually expedited the solution and now he is glad both sides are able to resolve the issue without entering a legal battle.
Waitrose wrote in a statement, “while we are confident that we’ve not infringed any of Hotel Chocolat’s designs, it is not in our interest to enter into a protracted legal dispute with Hotel Chocolat and so we have decided not to restock this product once the existing chocolate bars have sold through.”
Thirlwell added Waitrose’s managing director, Rob Collins, has accepted his invitation to sit with him over a cup of cocoa and talk about how to prevent similar incidents from happening again.
Not enough of an apology?
As Hotel Chocolat waits for a specific time to openly converse with Waitrose, a high-end supermarket chain, Thirlwell doesn’t seem to fully buy the retailer’s public statement especially on how its chocolate design did not resemble Hotel Chocolat’s.
“[Waitrose] doesn’t go into details… but we don’t expect that would be the case,” he said. “I’m a great believer in being able to defend and protect what you build. If you can’t do that, how can you create enterprises that can survive and offer careers to people?”
“Superficially, this case is about chocolate, but it’s actually more about value and integrity, and stand up to what you believe in,” added Thirlwell.
He noted, back in early 2000s, he decided to create a unique chocolate product because virtually all the chocolate bars at that time were rectangle.
“I poured a bowl of chocolate onto a marble tabletop, and used a pencil to etched out a curvy outline out of my imagination… we got great feedback from our consumers and decided to register the shape of our chocolate slab so as to protect the way it looks,” said Thirlwell.
So far, Hotel Chocolat has been manufacturing the curvy-shaped chocolate slabs in various sizes from as small as a credit card to as big as a piece of paper.
‘There should be protection available to all chocolate makers’
Thirlwell noted he registered Hotel Chocolat’s chocolate slabs as a design mark instead of a trademark, which could result in a different consequence if Hotel Chocolat brought Waitrose to court.
That’s essentially what makes the case different from an earlier dispute between Poundland and Mondelēz, according to a UK-based trademark lawyer.
“Design mark enables chocolate companies to protect their products’ distinct looks, versus trademark which is meant to protect the combination of a logo, words and an appearance,” Thirlwell explained.
“There should be protection available to all chocolate makers, small and large, because when somebody delivers your products mistakenly, the results will only confuse the consumer,” he added.