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Lindt may not trademark chocolate bunny, says European Court

Friday June 8, 2012 at 6:51pm
Lindt Trademark Registration

The chocolate bunny, covered in golden foil and decorated with a red ribbon around its neck, has been produced by Lindt since 1952, with Lindt first applying for EU trademark registration in 2004.

Part of a strong brand

However, the initial judgement ruled that even taking into account the familiar features of gold wrapping, pleated ribbon with bell and shape of the rabbit itself, the bunny could not be registered as a trademark, as there were numerous other firms who made chocolate Easter bunnies - including one Austrian confectioner whose rabbits were also wrapped in golden foil.

Lindt had argued against the ruling, claiming that the rabbit's likeness formed part of a strong brand which they had built up over decades since it first started selling the recognisable rabbits, which now reportedly sell at a count of around 60 million per year.

Rival products

Another motive for the trademark registration claim had been to prevent Austrian rival Hauswirth from producing a near identical chocolate sitting rabbit shape of its own, also wrapped in gold foil and with a red ribbon. Lindt had told Hauswirth in 2004 to change its wrapping to a bronze colour, and the red ribbon to green. An Austrian court was originally persuaded by Lindt's claim, and ordered Hauswirth to halt the manufacture of the Easter bunnies that resembled the Lindt product.

However, the initial 2010 ruling of the General Court - the second-highest of the EU courts - has recently been confirmed by the European Court of Justice, stating that the bunny's features were "not sufficiently different" from the packaging of other confectionery products, and that Lindt "had not proved that distinctive character had been acquired through use across the EU".

The Court also rejected Lindt's claims that the trademark had been acquired through use in national markets.

Lindt has declined to comment on the latest judgement until they have reviewed the ruling in its entirety. Hauswirth has so far also not responded to requests for comment, despite its victory.

The chocolate maker had already acquired a valid trademark across the 27-nation EU in 2000 for a chocolate Easter rabbit wrapped in gold foil, with a red ribbon, marked with the name 'Lindt'.

However its hopes to acquire a trademark for the same design minus the company name have fallen flat, with the European Court of Justice ruling now binding.

The rejection of Lindt's application for trademark registration is indicative of the strict stance taken by European courts when considering non-traditional trademark cases.

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