30 July 2021Alex Baldwin

Lindt gold foil colour is trademark protected, German court rules

The  German Federal Court of Justice has ruled that Swiss chocolatier Lindt & Sprüngli can trademark the gold foil wrapping of its chocolate bunnies.

Lindt managed to convince the court that its colour was protectable by demonstrating that more than 50% of consumers associated the gold colouring on chocolate bunnies with the Lindt branding.

This was proven with a survey presented by Lindt that showed that 70% of consumers associated gold-wrapped chocolate bunnies with Lindt’s productfar exceeding the 50% requirement for protection detailed in Section 4 No.2 of  MarkenG —Germany’s laws for trademark protection.

The court noted that the usage of the gold wrapping alongside other notable design elements such as the red collar and bell “does not speak against” the recognisability of the gold wrapping.

“It is crucial that the target public see a reference to the origin of this gold-tone for chocolate bunnies even if it is used together with these other design elements,” the court said in a  press release.

Commenting on the decision, Mark Kramer, partner at European intellectual property firm,  Potter Clarkson, said: “This a real coup for Lindt because it is not easy to secure a trademark for a signature colour – only brands with a proven reputation are able to do this, as we have seen recently with easyGroup when it secured a registration for aviation services in the UK for its distinctive orange tone.

“This victory significantly bolsters Lindt’s protection of its flagship product and demonstrates how commercially valuable a colour-related mark can be for brands.”

Karin Sandberg, partner at  Harmsen Utescher said that the ruling “strengthens the abstract colour mark”.

Infringement case

Litigation started when Lindt accused fellow confectionary company  Heilemann of infringing its chocolate with their own gold-wrapped bunny chocolate in 2018. Lindt sought to prohibit Heilemann from selling the bunny and get it to pay damages.

Lindt first moved to get trademark protection for the shape of its bunny but failed, leading it to try and protect the colour of the foil instead, according to  Reuters.

In a decision on 30 July 2020, the Upper Regional Court of Munich  rejected Lindt’s infringement claims, ruling that the “colour of the foil is not a characteristic feature of chocolate bunnies” and the “gold-tone does not confer any ‘significant value’ on the goods”.

Following the Federal Court ruling, the case will now be referred back to the Munich court for a rehearing with the assumption that Heilemann’s bunny features Lindt’s trademarked gold wrapping.

“I am personally very curious to see how the Upper Regional Court will evaluate the use of the colour gold by Heilemann in relation to the other features of counterparty´s product (the shape of the bunny, the design of the face, the green ribbon etc),” said Sandberg.

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19 September 2018   The EU General Court today annulled a decision made by the European Union Intellectual Property Office that had gone in favour of Lindt & Sprüngli in a trademark opposition.
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