Hotel Chocolat: case for and against in Waitrose bar spat

What is Hotel Chocolat’s Angus Thirlwell getting his meringue-strawberry-and-white chocolate knickers in a twist about? Among the new names from food and drink in this year’s fascinating Sunday Times Rich List, he is sitting pretty, with a personal fortune worth £130m. Even Sir Terry Leahy isn’t that rich (he’s fallen off the list along with Jamie Oliver) as the bar for wealth has risen.

So what if Waitrose has ripped off his distinctively shaped, colourful chocolate bars? They say R&D stands for ripoff and duplicate in retail. Everyone is at it. But isn’t the fact that Waitrose’s version is a pale imitation (taste and ingredients wise) actually helpful? I’ve always thought it’s when retailers come up with versions that are every bit as good (or better) that the real damage is done.

On the other hand, Thirlwell has every right (and the cash) to take issue. Unusually, he also has intellectual property design rights on his side, something we tend to associate with highfalutin engineering businesses, not some splodges of cocoa, sugar, cream, biscuits, freeze-dried strawberry powder and meringue. The more normal route for food and drink brands has been passing off, which has been notoriously difficult for the food industry to prove.

Still I do feel brands could do more to challenge own-label ripoffs. Sometimes a brand may choose not to sue because the defendant is a customer (intriguingly, Hotel Chocolat is sold in John Lewis shops). Sometimes it’s even producing the own-label equivalents itself. But that’s not the case with Waitrose and its identically named Eton Mess chocolate bars, which come in at half the price. The retailers (particularly the discounters) are also a canny lot and sail as close to the wind as they can get away with, unless challenged.

But often the decision to sue rests not with the law but with resolve. And it can weaken. In 1996 McVitie’s successfully sued Asda over the similarity between its Penguins and Asda’s Puffins. Several years later and Aldi is selling Seal biscuits, which bear more than a passing resemblance to Penguins in colour and design. What’s it got to lose?