09. April 2013
The Swiss chocolatier Lindt & Sprüngli has lost its appeal to the German Federal Supreme Court (Bundesgerichtshof, BGH) to protect its golden foil-wrapped chocolate Easter bunnies. Lindt had brought the claim to prevent competitors from selling similar-looking chocolate bunnies.
Easter bunny dispute in Germany
The chocolate Easter bunny trademark dispute began in 2001 after Lindt registered a trademark over its three dimensional golden foil-wrapped chocolate Easter bunny, complete with red necklace and gold bell.
Claiming exclusivity under the trademark, Lindt brought claims to try to prohibit competitors, including the German firm Confiserie Riegelein, from marketing similar products.
After over ten years of legal battle in various countries, the German Supreme Court rejected Lindt’s appeal and brought the golden Easter bunny battle to an end. As a result, variations of the golden chocolate Easter bunny can continue to be sold.
Trademark: risk of confusion
The BGH took the view that there were no points of law to be clarified. The court therefore indirectly affirmed previous decisions that no risk of confusion exists between Lindt’s golden Easter bunny and Riegelein’s variation. As a result, the trademark claim was unfounded.
The appeal was rejected on the basis that the visual characteristics of the chocolate Easter bunnies are so different, that there is no risk of consumers confusing the two brands. Whereas the Swiss bunny is set apart by the use of a red collar and bow with a golden bell attached, Riegelein’s bunny has a brown collar painted on. Also, the golden foil used to wrap the German product is of a distinctly darker tone.
Furthermore, the court argued that the Lindt bunny lacks uniqueness. Under this principle, the more unique a product is the greater protection it receives. As a bunny can only be shown in a sitting, standing or lying position, there is a lack of uniqueness and therefore no differentiating factor to be protected.
Is this case a trademark precedent
In what he sees as a triumph of justice, Peter Riegelein, director of Confiserie Riegelein, expressed his relief at being allowed to continue to sell his chocolate bunny in Germany. Riegelein’s lawyer even views the BGH decision as a trademark precedent.
Whether the case will establish itself as a precedent is unclear. In Austria, for example, Lindt won a similar case before the Supreme Court and a competitor was prohibited from selling golden-wrapped chocolate Easter bunnies. As such, the chocolate Easter bunny dispute could continue to rage in other countries and the situation remains tense.
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Categories: Trademark Law