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Tony Chocolonely recently started a campaign in order to expose slavery and child labor in the world of cocoa. The goal is to end this sort of abuse. By offering chocolate bars in wraps very similar to the trade dress of competitors, these companies suddenly and unintentionally find themselves in the spotlight. The look and feel of the used packaging will immediately be recognized as Twix, Toblerone, Kitkat and Ferrero Rocher. Is this allowed?
Well, no… at least in principle. Courts in the Netherlands sometimes accept this kind of campaigning if the goal is to expose a social abuse, based on freedom of speech. In such cases the use of someone else's trademark is sometimes permitted. For example Greenpeace’s campaign against Shell (court ruling) but also the campaigns of an animal rights organization against the “broiler chicken” industry, in which the recognizable advertising style of leading supermarket chains are used.
It is important to consider whether with the real objective of the use of another brand is to promote one’s own product or not. That makes a big difference here, because a competing product is promoted here. Hence, in my view, Tony’s competitors should be able to successfully object to this use. This use amounts to piggyback riding on the well-known brand and besides consumers could also be lead to think that there is some kind of collaboration between the two companies.
But would that be smart? Should they take action? The answer is No! There is a fair chance that the public opinion will turn against the trademark owners. Especially if the major players have to explain extensively whether or not the chocolate is made “slave free”, in court, on public record. Our advice is to sit still, if only to prevent loss of public image, and switch to slave and child labor free resources for chocolate as soon as possible.
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