As of: 07/29/2021 11:08 am
The Swiss company Lindt had sued a competitor who also sold chocolate bunnies wrapped in gold foil – and has now achieved partial success: According to the BGH, the “gold bunny” enjoys trademark protection.
The golden hue of Lindt’s famous chocolate Easter bunny enjoys trademark protection. That was decided by the Federal Court of Justice (BGH). The Swiss manufacturer has proven that far more than the required 50 percent of potential buyers associate the gold with Lindt – in surveys by the company it was 70 percent. The color has thus established itself as a so-called usage mark.
According to this judgment, the fact that Lindt does not use gold as the corporate color for all of its products does not play a role – not even that the rabbit can be recognized by other characteristic features such as the red collar with bells.
Possible trademark infringement has yet to be clarified
However, the protection of a usage mark is not absolute. The decisive factor is whether there can be confusion with other golden chocolate Easter bunnies. In addition to the gold tone, this also depends on the figure and other characteristics.
Therefore, the judgment of the BGH has not yet decided that the sued competitor, the Swabian Confiserie Heilemann, may not also sell a chocolate bunny wrapped in gold foil. Heilemann had also sold a seated chocolate bunny wrapped in gold-colored foil around Easter 2018.
The case goes back to the Munich Higher Regional Court. There it must now be checked whether Heilemann is actually infringing the Lindt trademark, for example because there is a risk of confusion between the two rabbits.
With a market share of 40 percent (2017), the Lindt “gold bunny” is by far the best-selling chocolate Easter bunny in Germany. In the past 30 years, more than 500 million of them have been sold. It has been wrapped in gold foil since 1952, and this gold tone has remained unchanged since 1994.