Background of the case
At the end of 2018, Lindt filed a lawsuit against Lidl with the Commercial Court of the Canton of Aargau. Essentially, what was being asked for was a ban on Lidl advertising, offering or selling its chocolate bunny wrapped in gold foil. As justification, Lindt stated that the chocolate bunny sold by Lidl was very similar in shape and design to their chocolate bunny and could be confused with it. According to Lindt, this infringes the trademark rights of their brand. That claim is not easy to prove, as Lindt does not have registered trademark protection in the EU for its golden bunny shape and colour. For that reason, The Commercial Court first dismissed the action in 2021 but later reopened it.
Court decision
On the 29th of September 2022, The Federal Supreme Court upheld the appeal lodged by Lindt & Sprüngli and overturned the judgment of the Commercial Court. Lindt & Sprüngli registered two three-dimensional shape marks for their rabbit in 2000. The Federal Supreme Court first examined whether such shape trademarks fall under the protection of the Trademark Protection Act. This case proved to be especially complicated as both brands have already established themselves in the market. Still, due to the very clear results of the surveys submitted by Lindt & Sprüngli, it has been proven that the Lindt rabbit has become well known to the general public and that the registered shape trademarks have thus become associated with their brand.
The Federal Supreme Court then examined whether there was a likelihood of confusion due to the similarity of the two products. It concluded that there is a likelihood of confusion even though the two products have some design differences. Due to their overall impression, the Lidl rabbits naturally trigger associations with the shape of the Lindt rabbit. For that reason, the court granted permission to ban the production of chocolate bunnies sold by Lidl as demanded by Lindt & Sprüngli. This also includes the order to destroy any remaining Lidl bunnies, although the destruction, in that case, can mean reusing the chocolate for other products.
Lindt’s long-running battle for trademark protection
This is not the first time Lindt tried to enforce its trademark rights to protect the beloved chocolate bunny. Lindt & Sprüngli have made the rabbit since 1952 and applied for an EU trademark in 2004. However, the initial judgment of the European Court has ruled that Lindt's rabbit is devoid of any distinctive character. Back in 2018, Lindt became aware of the sale by Heilemann of gold-foil-wrapped chocolate in the shape of a seated bunny and brought infringement proceedings to the District Court in Munich. The German Federal Court settled that the gold wrapping of Lindt’s chocolate bunny is trademark protected, which was the first time Lindt chocolate bunny trademark has been recognised in the EU. According to Lindt, the goal has always been to defend itself against copycats exploiting the reputation it had built for its product over the years.
