With Easter almost upon us, supermarkets and confectioners are full of chocolate in various seasonal forms but the Lindt Easter bunny is guaranteed to stand out from the crowd, at least in Austria. Lindt & Sprüngli AG registered its gold wrapped and red ribboned bunny design with its company logo as an EU-wide trade mark in 2001. But it failed to have the protection extended either to the shape of the rabbit alone or the ribbon and bell in 2010 when the Court held that neither were sufficiently distinctive on their own. See Chocoladefabriken Lindt & Sprüngli AG vs OHIM (T-336/08, T-346/08 and T-395/08).
In the meantime, in a long running dispute between Lindt and Hauswirth GmbH, who also manufacture chocolate bunnies, the Court referred a case concerning the original trade mark back to the Austrian court: Chocoladefabriken Lindt & Sprüngli AG v Franz Hauswirth GmbH (Case C-529/07) Hauswirth had argued that Lindt had made this application in the knowledge that others produced a similar product and was therefore acting in bad faith when registering the trade mark. The ECJ ruled that such knowledge could constitute bad faith, depending on the intention of the registering company. Happily for Lindt the court in Vienna last week ruled in favour of the company, deciding that the two products could be confused so Hauswirth should change their packaging. Interestingly, 2011 is the Chinese year of the Golden rabbit which traditionally brings luck.
Astrology experts are of the opinion that a year of the rabbit brings a time for negotiation for all- certainly for Lindt!