Legal victory for Lindt in German chocolate bunny case

Lying in wait for impersonators: Lindt's Gold Bunny Keystone / Angelika Warmuth

A German court has ruled that the golden colour of the foil wrap on Swiss firm Lindt & Sprüngli’s popular chocolate Easter Bunny enjoys protected status.

The Federal Court of Justice delivered its verdict on Thursday in a battle between Lindt and German company Heilemann, which in 2018 also marketed a chocolate bunny in a gold foil wrap. Lindt claimed it had a trademark on the colour, acquired by use, and that Heilemann had infringed this trademark and should be prevented from selling its product.

A state court in Munich ruled against Lindt last year. But the federal court found the Swiss company had proven that the gold of its bunny had acquired trademark status by reputation, citing a survey presented by the manufacturer showing 70% of respondents associated the hue with the Lindt product.

The court said it didn’t matter that Lindt didn’t use the gold colour for all or even most of its products, or that its bunny has other distinguishing features, such as a red collar.

Distinguishing features

That said, enjoying trademark status by reputation is not everything: in order to determine if another company has infringed the protected status, the relevant question is whether buyers could be confused by the similarity. This is something that is also determined by shape and other features, the court said.

Federal judges thus sent the case back to Munich, where a court will determine whether Heilemann actually infringed on Lindt’s trademark by producing a confusingly similar bunny.

Lindt has sold its Gold Bunny in Germany since 1952, and the product has had its current gold shade since 1994. It is by some distance the best-selling chocolate Easter bunny in Germany, with a market share of over 40% in 2017, according to the court.

Lindt has for decades been trying to protect the market position and status of its gold bunny, with varying success: while it enjoys trademark status in some European countries like Austria (where it successfully challenged a rival bunny in 2011), its attempt to get the status at the EU level was rejected in 2012. The following year it lost a similar case it had fought against German brand Confiserie Riegeln since 2000.